Part 1069

Section 3. And be it further enacted, That it shall be the duty of the marshal of the district in which any alien enemy shall be apprehended, who by the President of the United States, or by the order of any court, judge or justice, as aforesaid, shall be required to depart, and to be removed, as aforesaid, to provide therefor, and to execute such order, by himself or his deputy, or other discreet person or persons to be employed by him, by causing a removal of such alien out of the territory of the United States; and for such removal the marshal shall have the warrant of the President of the United States, or of the court, judge or justice ordering the same, as the case may be.

Approved, July 6, 1798."

_Statutes at Large of the United States, edition of 1850, Volume I, page 577._

The text of the Sedition Act is as follows:

JULY 14, 1798. Chapter lxxiv.

"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 behavior in such sum, and for such time, as the said court may direct.

Section 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 Congress 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, and one 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.

Section 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.

Section 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. Approved July 14, 1798."

"There has been a general effort on the part of biographers to clear their respective heroes from all responsibility for these ill-fated measures. The truth is, that they had the full support of the congressmen and senators who passed, them, of the President who signed them, and of all the leaders in the States, who almost all believed in them; and they also met with very general acceptance by the party in the North. Hamilton went as far in the direction of sustaining the principle of these laws as any one. He had too acute a mind to believe with many of the staunch Federalist divines of New England, that Jefferson and Madison were Marats and Robespierres, and that their followers were Jacobins who, when they came to power, were ready for the overthrow of religion and society, and were prepared to set up a guillotine and pour out blood in the waste places of the federal city. But he did believe, and so wrote to Washington, after the appearance of the X. Y. Z. letters that there was a party in the country ready to 'new model' the constitution on French principles, to form an offensive and defensive alliance with France, and make the United States a French province. He felt, in short, that there was a party in America ready for confiscation and social confusion. A year later, in 1799, he wrote to Dayton, the speaker of the national House of Representatives, a long letter in which he set forth very clearly the policy which he felt ought to be pursued. {3319} He wished to give strength to the government, and increase centralization by every means, by an extension of the national judiciary, a liberal system of internal improvements, an increased and abundant revenue, an enlargement of the army and navy, permanence in the laws for the volunteer army, extension of the powers of the general government, subdivision of the States as soon as practicable, and finally a strong sedition law, and the power to banish aliens. This was what was termed at that day a 'strong and spirited' policy; it would now be called repressive, but by whatever name it is designated, it was the policy of Hamilton, and is characteristic of both his talents and temperament. Except as to the subdivision of States, it was carried out pretty thoroughly in all its main features by the Federalists. The alien and sedition laws, although resisted in Congress, did not much affect public opinion at the elections which immediately ensued, and the Federalists came into the next Congress with a large majority."

_Henry Cabot Lodge, Alexander Hamilton, chapter 9._

"The different portions of the country were affected according to the dominant political opinion. Where the Federalists were strong political feeling bore them headlong into prosecutions under the new powers. In the Republican States a sense of injury and danger went hand in hand, and the question of the hour was how to repel the threatening destruction. Mr. Jefferson did not fail to see that the great opportunity for his party had come. His keen political sagacity detected in an instant the fatal mistake the administration had made, and he began at once to look about him for the best means to turn his opponents' mistake to his own advantage. Naturally he felt some delicacy in appearing too forward in assailing a government of which he himself was the second in office. Nevertheless he lent himself willingly to the task of organizing, in a quiet way, a systematic assault upon these laws of Congress, and at once opened a correspondence calculated to elicit the best judgment of his coadjutors and gradually drew out a programme of action. Virginia was by no means unanimous in reprobating these laws. She had a large and influential body of Federalists. … But the influence of Jefferson was paramount and the result of Jeffersonian principles soon appeared on every hand. Meetings were held in many of the counties upon their county court days at which were adopted addresses or series of resolutions condemning or praying for the repeal of these laws. … New York, New Jersey, and Pennsylvania sent petitions of appeal to Congress. … But it was in Kentucky that the greatest resistance was evoked. The feeling in that State was, indeed, little short of frenzy, and a singular unanimity was displayed even in the most extreme acts and sentiments. This grew out of no passing passion. It was based upon the most vigorous elements in her character as a people. Kentucky was at this time somewhat apart from the rest of the Union. … Her complaints, just and unjust, had been many, but hitherto she had not gained the nation's ear. But the time was now ripe for her to assert herself."

_E. D. Warfield, The Kentucky Resolutions of 1798, chapter 1._

The famous Kentucky Resolutions, substantially drafted by Jefferson, as he acknowledged fifteen years afterwards, but introduced in the Legislature of Kentucky by John Breckenridge, on the 8th of November, 1798, were adopted by that body, in the lower branch on the 10th and in the upper on the 13th. Approved by the Governor on the 16th, they were immediately printed and copies officially sent to every other state and to members of Congress. They were as follows:

"I. Resolved, that the several states composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each state to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and are of no force: That to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party: That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

II. Resolved, that the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the High Seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, 'that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,' therefore also the same act of Congress passed on the 14th day of July, 1798, and entitled 'An act in addition to the act entitled an act for the punishment of certain crimes against the United States;' as also the act passed by them on the 27th of June, 1798, entitled 'An act to punish frauds committed on the Bank of the United States' (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the constitution) are altogether void and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains solely and exclusively to the respective states, each within its own Territory.

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III. Resolved, that it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people;' and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states, or to the people: That thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated, rather than the use be destroyed; and thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this state by a Law passed on the general demand of its Citizens, had already protected them from all human restraint or interference; and that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution which expressly declares that 'Congress shall make no law respecting an Establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,' thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehoods, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of the Congress of the United States passed on the 14th day of July, 1798, entitled 'An act in addition to the act for the punishment of certain crimes against the United States,' which does abridge the freedom of the press, is not law, but is altogether void and of no effect.

IV. Resolved, that alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that 'the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people,' the act of the Congress of the United States passed on the 22d day of June, 1798, entitled 'An act concerning aliens,' which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.

V. Resolved, that in addition to the general principle as well as the express declaration, that powers not delegated are reserved, another and more special provision inserted in the Constitution from abundant caution has declared, 'that the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808.' That this Commonwealth does admit the migration of alien friends described as the subject of the said act concerning aliens; that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory; that to remove them when migrated is equivalent to a prohibition of their migration, and is therefore contrary to the said provision of the Constitution, and void.

VI. Resolved, that the imprisonment of a person under the protection of the Laws of this Commonwealth on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by the said act entitled 'An act concerning aliens,' is contrary to the Constitution, one amendment to which has provided, that 'no person shall be deprived of liberty without due process of law,' and that another having provided 'that in all criminal prosecutions the accused shall enjoy the right to a public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence,' the same act undertaking to authorize the President to remove a person out of the United States who is under the protection of the Law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without having witnesses in his favour, without defence, without counsel, is contrary to these provisions also of the Constitution, is therefore not law but utterly void and of no force. That transferring the power of judging any person who is under the protection of the laws, from the Courts to the President of the United States, as is undertaken by the same act concerning Aliens, is against the article of the Constitution which provides, that 'the judicial power of the United States shall be vested in Courts, the Judges of which shall hold their offices during good behaviour,' and that the said act is void for that reason also; and it is further to be noted, that this transfer of Judiciary powers is to that magistrate of the General Government who already possesses all the Executive, and a qualified negative in all the Legislative power.

VII. Resolved, that the construction applied by the General Government (as is evinced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power to lay and collect taxes, duties, imposts, and excises; to pay the debts, and provide for the common defence, and general welfare of the United States, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States, or any department thereof, goes to the destruction of all the limits prescribed to their power by the Constitution—That words meant by that instrument to be subsidiary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part so to be taken, as to destroy the whole residue of the instrument: That the proceedings of the General Government under colour of these articles, will be a fit and necessary subject for revisal and correction at a time of greater tranquility, while those specified in the preceding resolutions call for immediate redress.

VIII. Resolved, that the preceding Resolutions be transmitted to the Senators and Representatives in Congress from this Commonwealth, who are hereby enjoined to present the same to their respective Houses, and to use the best endeavours to procure at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts.

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