An Act in addition to the act, entitled "An Act for the punishment of certain crimes against the United States."

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty; and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor, and on conviction, before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months nor exceeding five years; and further, at the discretion of the court may be holden to find sureties for his good behaviour in such sum, and for such time, as the said court may direct.

SEC. 2. And be it further enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Con

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gress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

SEC. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.

SEC. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, that the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.

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A

In 1798 the Republicans were in the depths of gloom and despair. standing army had been created, and, much to their disgust, the despised Hamilton was in a position to control it. Four laws had been enacted the Alien and Sedition Laws which they did not believe had constitutional sanction but which, nevertheless, gave to the government great power over the actions of individuals. They saw the Federalists drunk with power and ready to extend it still further. They saw the people wrought up over the dispute with France and ready to entrust the war party with whatever power it might ask, without considering how such power might be abused.*

This state of affairs alarmed the Republicans, who thought their worst fears were about to be realized, and some of them even considered the dissolution of the Union. As already stated, John Taylor, of Carolina,

* Bassett, The Federalist System, p. 265.

wrote in this vein to Jefferson, suggesting that Virginia and North Carolina withdraw from the Union and form a separate government on Republican principles. Jefferson, however, thought quite the reverse, and on June 1, 1798, wrote to Taylor as follows:

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It is true that we are completely under the saddle of Massachusetts and Connecticut, and that they ride us very hard, cruelly insulting our feelings, as well as exhausting our strength and subsistence. Their natural friends, the three other eastern States, join them from a sort of family pride, and they have the art to divide certain other parts of the Union, so as to make use of them to govern the whole. This is not new, it is the old practice of despots; to use a part of the people to keep the rest in order. Be this as it may, in every free and deliberating society, there must from the nature of man, be opposite parties, and violent dissensions and discords; and one of these, for the most part must prevail over the other for a longer cr shorter time. Perhaps this party division is necessary to induce each to watch and relate to the people the proceedings of the other. But if on a temporary superiority of one party, the other is to resort to a scission of the Union, no Federal Government can ever exist. If to rid ourselves of the present rule of Massachusetts and Connecticut, we break the Union, will the evil stop there? Suppose the New England States

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alone cut off, will our nature be changed? we not men still to the south of that, and with all the passions of men? Immediately, we shall see a Pennsylvania and a Virginia party arise in the residuary confederacy and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands, by eternally threatening the other that unless they do so and so, they will join their northern neighbors. If we reduce our Union to Virginia and North Carolina, immediately the conflict will be established between the representatives of these two States, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry;

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seeing that we must have somebody to quarrel with, I had rather keep our New England associ ates for that purpose than to see our bickerings transferred to others. * But who can say what would be the evils of a scission, and when and where they would end? Better keep together as we are, haul off from Europe as soon as we can, and from all attachments to any portions of it; and if they show their power just sufficiently to hoop us together, it will be the happiest situation in which we can exist.

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Jefferson was willing, however, that the States should protest against the tendency of the Federalists, thinking that the evils might be remedied if attention were called to them with sufficient force. There was no longer time to stop at the exchange of private opinions, and the declarations of individuals. The time had come when an authentic statement of party principles should be distinctly formulated and officially proclaimed and recognized. If this were not done, there was danger of being so far carried away by the tide of events as to lose sight of all principles - perhaps

Ford's ed of Jefferson's Writings, vol. vii., pp. 263-265.

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forever. On the other hand, should this be done, the course of events might be calmly awaited and the policy of expediency could again be followed. Once the protest was recorded and was not officially recalled or withdrawn, it would be part of the record, and this could be taken advantage of at any time.* Both Jefferson and Madison considered the Alien and Sedition Laws violations of the Constitution, and were determined to bring to bear upon the issue the power and influence of the State Legislatures. Jefferson declared that he considered the Alien and Sedition Laws "an experiment on the American mind to see how far it will bear an avowed violation of the Constitution. If this goes down, we shall immediately see attempted another act of Congress declaring that the President shall continue in office during life, reserving to another occasion the transfer of the succession to his heirs and the establishing of the Senate for life."t

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Virginia and North Carolina, but North Carolina, but changed his plan after the election of that fall, because" the late changes in their representation [that of North Carolina] may indicate some doubt whether they could have passed," and he considered it better that " they should come from Kentucky."* Accordingly, he drafted a set of resolutions † which were introduced by John Breckenridge in the Kentucky Legis

*See his letter to Wilson C. Nicholas, in Ford's ed. of Jefferson's Writings, vol. vii., p. 282.

Jefferson himself subsequently admitted his authorship of these resolutions. Writing to the son of W. C. Nicholas, December 11, 1821, he said: "At the time when the Republicans of our country were so much alarmed at the proceedings of the Federal ascendency in Congress,

they concluded to retire from that field, take a stand in the state legislatures, and endeavor there to arrest their progress. Your father, Colonel W. C. Nicholas, and myself happening to be together, the engaging the cooperation of Kentucky in an energetic protestation against the constitutionality of those laws became a subject of consultation. Those gentlemen pressed me strongly to sketch resolutions for that purpose, your father undertaking to intro duce them to that legislature, with a solemn assurance, which I strictly required, that it should not be known from what quarter they came. I drew and delivered them to him, and in keeping their origin secret he fulfilled his pledge of honor. Some years after this, Colonel Nicholas asked me if I would have any objection to its being known that I had drawn them. I pointedly enjoined that it should not. Whether he had unguardedly intimated it before to any one I know not; but I afterwards observed in the papers repeated imputations of them to me, on which, as has been my practice on all occasion of imputation, I have observed entire silence."- Ford's ed. of Jefferson's Writings, vol. vii. pp. 290-291, note.

Warfield, in his The Kentucky Resolutions of 1798: an Historical Study (New York, 1887, chap. vi.), contends that Breckenridge's authorship of the resolutions was not questioned until John Taylor published his Inquiries into the Principles and Policy of the Government of the

lature and on November 10 adopted, with scarcely a dissenting vote.*

John Quincy Adams draws attention to the "keen, constant, and profound faculty of observation " possessed by Jefferson "with regard to the action and reaction of popular opinion upon the measures of government," and, after speaking of the

United States (Fredericksburg, 1814, p. 174), where they are credited to Jefferson. See also Warfield's article in Magazine of Western History (April, 1886).

*Text of the various drafts in Ford's ed. of Jefferson's Writings, vol. vii., pp. 289-309 and insert. See also Shaler, History of Kentucky, App. A., pp. 409-416; MacDonald, Select Documents, pp. 149-155; Houghton, American Politics, p. 150 et seq. See also Appendix I. at the end of the present chapter. "Much misrepresentation and misconception of these resolutions have existed in the general charge and belief that they favored the doctrine of nullification or implied a purpose of resistance to Federal authority. A just view will ascribe to them but a purpose to enter a solemn protest against the exercise of the power sought to be conferred upon the Federal executive, and the use of moral rather than revolutionary means to effect a remedy. That this was done is sufficiently attested by history. The Federal party had administered the government for twelve years under a loose construction of the constitution during the last presidential term, and the introduction of these resolutions proved to be the basis of the organization of the Democratic party, the election of Jefferson and all succeeding presidents, except three, for sixty years."- Josiah S. Johnston, in The South in the Building of the Nation, vol. i., pp. 271-272. See also Shaler, p. 141 et seq.; Warfield, The Kentucky Resolutions of 1798, p. 150 et seq.; the review and the correspondence in the Nation, vol. xlv., p. 528 and xlv., pp. 328-384, 467, 468; R. T. Durrett, in Southern Bivouac, vol. i., pp. 577, 658, 760; Frank M. Anderson, Contemporary Opinion of the Virginia and Kentucky Resolutions, in American Historical Review, vol. v., pp. 45-63, 225-252 (1899–1900); E. P. Powell, Nullification and Secession in the United States (1897); C. W. Loring, Nullification, Secession, Webster's Argument and the Kentucky and Virginia Resolutions (1893).

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"Assuming as first principles, that by the Constitution of the United States Congress States Congress possessed no authority to restrain in any manner the freedom of the press, not even in self-defence against the most incendiary defamation, and that the principles of the English Common Law were of no force under the Government of the United States he drafted, with his own hand, resolutions which were adopted by the Legislature of Kentucky, declaring that each State had the right to judge for itself as well of infractions of the common Constitution, by the general government, as of the modes and measures of redress that the alien and sedition laws were, in their opinion, manifest and palpable violations of the Constitution, and therefore null and void and that a nullification by the State Sovereignties of all unauthorized acts done under color of the Constitution, is the rightful remedy for such infractions. The principles thus assumed, and particularly that of remedial nullification by state authority, have been more than once re-asserted by parties predominating in one or more of the confederated States, dissatisfied with particular acts of the general government. They have twice brought the Union itself to the verge of dissolution. To that result it must come, should it ever be the misfortune of the American People that these principles should obtain the support of sufficient portion of them to make them effective by force. They never have yet been so supported. The alien and sedition acts were temporary Statutes, and expired by their own limitations. No attempt has been made to revive them, but in our most recent times, restrictions far more vigorous upon the freedom of the press, of speech, and of personal liberty, than the alien and sedition laws, have not only been deemed within the constitutional power of Congress, but even recommended by the Chief Magistrate of the Union, to encounter the dangers and evils of incendiary publications."

* Lives of Madison and Monroe, p. 65 et seq.

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Later in the same year Madison drafted a series of resolutions which were introduced in the Virginia Legislature by John Taylor on December 13, 1798. They were debated until the 21st and passed on the 24th in the House by a vote of 100 to 63, and in the Senate by a vote of 14 to 3.* In speaking of this and of the influence which Jefferson exerted over Madison, Adams says:

"Mr. Madison, at the earnest solicitation of Mr. Jefferson, introduced into the legislature of Virginia the resolutions adopted on the 21st of December, 1798, declaring, 1. That the Constitution of the United States was a compact, to which the States were parties, granting limited powers of Government. 2. That in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the compact, the States had the right, and were in duty bound to interpose, for arresting the progress of the evils and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them. 3. That the alien and sedition acts were palpable and alarming infractions of the Consti tution. 4. That the State of Virginia, having by its convention which ratified the federal Constitution, expressly declared that among other essential rights the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States, and from its extreme anxiety to guard these rights from every possible attack of sophistry and ambition, having with the other States recommended an amendment for that purpose, which amendment was in due time annexed to the Constitution, it would mark a reproachful inconsistency and criminal degeneracy if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which might be fatal to the others. 5. That the

* McMaster, vol. ii., p. 422; Hunt, Life of Madison, p. 252 et seq. The text will be found in Madison's Works (Congress ed.), vol. iv., pp. 506507; MacDonald, Select Documents, pp. 155–157; Cooper and Fenton, American Politics, book ii.; Houghton, American Politics, p. 136. See also Appendix II. at the end of the present chapter.