THE ALIEN AND SEDITION ACTS.

343

government, the Federalists determined, should be silenced. As the party controlled both branches of Congress, it could easily carry out its program. A foreigner should thenceforth be required to reside fourteen years, instead of five, in the country, to gain citizenship, and to give five, instead of three, years' notice of his intention to become a citizen.1 Alien enemies should be refused naturalization, and all resident aliens should be registered and thus be brought within the surveillance of the government. As the executive branch was best fitted to maintain the peace of the State, the President was empowered to expel from the country any alien whom he believed to be dangerous to its peace, or whom he suspected to be engaged in treasonable practices.2 If a war with a foreign country should break out, the President, at his discretion, might cause the arrest of all citizens of that country and also all resident aliens, for the time being in America, and if necessary, remove them from the United States.

These were the famous alien and sedition acts of 1798, which immediately provoked widespread hostility and the very memory of which is to this day intolerable to thousands of Americans. The Republicans protested against them as violating the right of personal liberty, and therefore, infringing upon the State constitutions. They protested that they interfered with the right of free migration, and thus worked a direct injury to the States. Because they confused executive with judicial functions, they declared that they were plainly unconstitutional. What constitutional right, they asked, had the President

1 Act of June 19, 1798; Statutes at Large, I, 566; Annals of Congress, 1570.

2 Acts of June 25 and July 6, 1798; Statutes at Large, I, 570, 577; Annals of Congress, 1566.

> Madison's Works, IV, 524; Annals of Congress, 1631, 1733.

344

DEMOCRATIC OPPOSITION.

to declare, at his discretion, that a resident alien was a public enemy; or by what authority under the Constitution could Congress empower the President to arrest a person, even though an alien, who, he might suspect, was engaged in treasonable undertakings? Were not the odious laws a palpable violation of the rights of freedom of speech and of the press, given to every inhabitant of the country by the State constitutions? Again, the acts violated the habeas corpus, a right which these constitutions most zealously guarded. In spite of these serious objections and latent warnings, the Federalists persisted in passing the acts; but before they had been placed on the statute books, State legislatures were arrayed against them, and political parties were strenuously engaged, some in their attack and others in their defense. A political counter-revolution had broken out, the master spirit of which was Jefferson.

The Federalists were determined to build up a strong executive department, too strong, as Jefferson believed, for the other parts of the Constitution. He and his followers on the other hand were equally determined to strengthen the legislative department.1 Political parties in America were not thoroughly organized until the time of the alien and sedition laws. But from this time there was a National party and a State party known at first, the one as the Federalist, and the other as the DemocraticRepublican. The Democrats accused the Federalists of seeking to strengthen the general government at the expense of the States; the Federalists accused the Democrats of seeking to strengthen the State governments at the expense of the United States. We have seen how the

1 See Jefferson's letter to the Honorable William Wise, February 12, 1798; reprinted in The American Historical Review, April,

A CAMPAIGN OF OPPOSITION.

345

decision of the Supreme Court in 1794, in the case of Georgia, had alarmed the then incipient State party, who speedily took up Iredell's dissenting opinion as the true interpretation of the Constitution, and by its activity during the four years following the decision, succeeded in bringing about the adoption of the eleventh amendment.1 While the Federalists were busily carrying their alien and sedition acts through Congress, Jefferson was sounding the alarm and his supporters throughout the country were forming a campaign for the purpose of compelling their repeal. The State party did not hesitate to pronounce them unconstitutional, and many public meetings, especially in the South, sent resolutions to the legislatures condemning them. The most famous of all the protests against the acts and the principles which they embodied, took the form of resolutions presented by John Breckenridge to the Kentucky legislature on the seventh of November, 1797. Jefferson was their author.2 The legis lature can scarcely be said to have debated them, but rather to have spent a week in eulogizing the doctrines of the State party and attacking those of the Federalists. The resolutions were passed with great satisfaction. A similar set, written at Jefferson's request by Madison, was presented in the Virginia legislature and adopted with similar zeal on the twenty-fourth of December. These were the Kentucky and Virginia resolutions, still famous in our history, and the first great political landmark fixed by the Democratic party. A second act, also written by Jefferson, was adopted by the Kentucky legislature on the twenty-second of November, 1799. The three sets of

1 See p. 289.

2 Preston's Documents, 287.

3 Preston, 284.

4 Preston, 295.

3

346 THE VIRGINIA AND KENTUCKY RESOLUTIONS.

resolutions, though differing in language and in political doctrine, when taken together composed a political canon of transcendent importance in our constitutional annals. They agreed in declaring that the Constitution was a compact, to which the States are parties, and that the powers of the general government are limited by the plain sense of the Constitution. In case of a deliberate, palpable and dangerous exercise of powers not granted to that government, the States are in duty bound to interpose and arrest the progress of the evil. The federal government was accused of seeking to enlarge its powers by a forced construction of the Constitution for the purpose of consolidating the States into one sovereignty, the effect of which would transform the republic into a monarchy. The Virginia, and the first Kentucky, resolutions went no further, but the second Kentucky set declared the alien and sedition acts unconstitutional because violating the Bills of Rights in the State constitutions. The States, according to the second Kentucky resolutions, had formed the Constitution, were sovereign and independent, and therefore, had the unquestionable right to judge of its infraction, the rightful remedy of which was "a nullification by those sovereignties of all unauthorized acts done under color of that instrument." Thus, according to these resolutions, a State was a sovereign power, but the general government was not. The second Kentucky resolutions plainly upheld the doctrine of the right of a State to nullify a federal law, from which doctrine the right of secession was an inevitable conclusion.

The Kentucky and Virginia resolutions put the idea of State sovereignty before the country in a practicable form. Copies were promptly sent to all the State legislatures, of which seven immediately formulated replies.1 The

1 Elliot, IV, 532.

any

government.

MADISON'S REPORT.

347

New England States defended the alien and sedition laws, though Rhode Island did not consider itself authorized to decide on their constitutionality. Delaware pronounced the Virginia resolutions an unjustifiable interference with the powers of the general government, and Vermont and Massachusetts asserted that it was not within the right of State legislature to usurp the powers of the federal Not one State replied in approval of the Kentucky and Virginia resolutions. The replies received were hardly those expected, but the Virginia House of Burgesses referred them all to a special committee, of which Madison was chairman. He undertook, in an elaborate report, to prove that the Virginia resolutions were in harmony with the express provisions of the Constitution. Though not holding the doctrine of nullification, he defined the federal government to be the result of a compact between the States, and argued that its powers were derivative, not original. The idea of national sovereignty, he thought, was disproved by the history of the country. The States were the final arbiter, for they had created the general government as their agent. Madison did not show just at what time a State might pronounce a federal act to be a palpable violation of State rights; he left the matter open. If nullification was to be the final conclusion of the Doctrine of '98, by which name Madison's interpretation has long since been known, he at least left it to be worked out in the practical administration of the government.

There can be little doubt that the majority of the voters at the time of the adoption of the Kentucky and Virginia resolutions supported, whether or not they understood, the doctrine of '98. The jealousy of the States for their sov

1 Elliot, IV, 546.