THE STATES AND THE UNITED STATES.
EDITED WITH NOTES BY
HERMAN V. AMES, Ph.D.
PUBLISHED BY THE DEPARTMENT OF HISTORY,
UNIVERSITY OF PENNSYLVANIA.
Sold by the Department of History, University of
Pennsylvania, Philadelphia, Pa., and by Longmans, Green & Co., New York.
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
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.
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.
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
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 ...........
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
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
101. Ohio on Emancipation and Colonization, 1824..... 203
102-104. South Carolina's Reply to Ohio and the Federal Government, 1824
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
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.
122. Virginia's Reply, 1844 .... 239
123. Massachusetts against the Mexican War and Slavery. 1847........... ....
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
THE STATES AND THE UNITED STATES.
1. Memorial from the State of Rhode Island and Providence
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,
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
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
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
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
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
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.).
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
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.
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
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.
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,
1 I am indebted to Mr. William Harden, Librarian Georgia
Historical Society, for transcripts of these texts and examination of newspaper
3. Extracts from the Message of Governor Edward Telfair, Dated November
The Augusta Chronicle and Gazette of the State, Saturday, November 9,
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
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
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
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
Ordered, That the clerk do carry the same to the Senate and desire
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
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
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
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
2 The formal indorsements are omitted in the other cases.
8. The State of Rhode Island and Providence Plantations to
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;
4th. An infraction of the Constitution of the United States expressed in
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
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
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
coöperate 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
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
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
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,
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,
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
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,
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
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.
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
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
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
[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
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
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 —
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
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
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
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.
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
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
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
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
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
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
THE STATES AND THE UNITED STATES.
Pennsylvania and the Federal Judiciary.
The Olmstead Case.
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.
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,
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'
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 be in the power of the executive to make, or that Congress
may make, either by the appointment of commissioners or otherwise, for settling
the difficulties between the two governments.
And, That the Governor be also requested to transmit a copy to the
Executives of the several States in the Union, with a request, that they may be
laid before their respective Legislatures.
[Pamphlet Laws of Pennsylvania, 1808-09, 200.]
24. Reply of the General Assembly of Virginia to Pennsylvania.
January 26, 1810.
The foregoing resolutions of Pennsylvania were not concurred in by a single
State. On the contrary the Legislatures of at least eleven States passed
resolutions of disapproval, as follows: New Hampshire, Massachusetts, Vermont,
New Jersey, Maryland, Virginia, North Carolina, Georgia, Ohio, Kentucky,
Tennessee. See Journals of the Senate and House of Pennsylvania, for
1809-1812; Ames, Proposed Amendments, 160, notes, 329. The most
elaborate of these replies came from Virginia. It is of unusual interest owing
to both the previous and subsequent action of Virginia relative to the
jurisdiction of the Federal Government.
The committee, to whom was referred the communication of the governor of
Pennsylvania, covering certain resolutions of the legislature of that state,
proposing an amendment to the constitution of the United States, by the
appointment of an impartial tribunal to decide disputes between the state and
federal judiciary, have had the same under their consideration, and are of
opinion that a tribunal is already provided by the constitution of the United
States, to wit: the Supreme Court, more eminently qualified from their
habits and duties, from the mode of their selection, and from the tenure of
their offices, to decide the disputes aforesaid in an enlightened and impartial
manner, than any other tribunal which could be erected.
The members of the Supreme Court are selected from those in the United
States who are most celebrated for virtue and legal learning; not at the will
of a singal individual, but by the concurrent wishes of the President and
Senate of the United States, they will therefore have no local prejudices and
The duties they have to perform lead them necessarily to the most enlarged
and accurate acquaintance with the jurisdiction of the federal and several
state courts together, and with the admirable symmetry of our government.
The tenure of their offices enables them to pronounce the sound and correct
opinions they may have formed, without fear, favor, or partiality.
The amendment to the constitution proposed by Pennsylvania seems to be
founded upon the idea that the federal judiciary will, from a lust of power,
enlarge their jurisdiction to the total annihilation of the jurisdiction of the
state courts, that they will exercise their will instead of the
law and the constitution. This argument, if it proves anything,
would operate more strongly against the tribunal proposed to be created which
promises so little, than against the Supreme Court, which for reasons given
before had every thing connected with their appointment calculated to ensure
confidence. What security have we, were the proposed amendments adopted, that
this tribunal would not substitute their will and their pleasure
in the place of law?
The judiciary are the weakest of the three departments of government, and
least dangerous to the political rights of the constitution; they hold neither
the purse nor the sword, and even to enforce their own judgments
and decrees, must ultimately depend upon the executive arm. Should the federal
judiciary, however, unmindful of their weakness, unmindful of the duty which
they owe to themselves and their country, become corrupt, and transcend the
limits of their jurisdiction, would the proposed amendment oppose even a
probable barrier in such an improbable state of things? The creation of a
tribunal, such as is proposed by Pennsylvania, so far as we are enabled to form
an idea of it from a description given in the resolutions of the legislature of
that state, would, in the opinion of your committee, tend rather to invite than
prevent a collision between the federal and state courts. It might also become,
in process of time, a serious and dangerous embarrassment to the operations of
the general government.
Resolved therefore, That the legislature of this state do disapprove
of the amendment to the constitution of the United States, proposed by the
legislature of Pennsylvania.
Resolved also, That his excellency the governor be, and is hereby
requested, to transmit forthwith a copy of the foregoing preamble and
resolutions, to each of the senators and representatives of this state in
Congress, and to the executive of the several states in the Union, with a
request that the same may be laid before the legislatures thereof.
[Acts of General Assembly of Virginia, 1809-10, 102, 103.]
25. Extracts from the Preamble and Resolutions of the House of
Representatives of Pennsylvania.
February 3, 1810.
Chagrined at the success of the Federal Courts, and disappointed with the
replies of the other States to their proposal to amend the Constitution, both
branches of the General Assembly of Pennsylvania, early in the year 1810, drew
up elaborate reports and resolutions reviewing the questions at issue anew.
Extracts from the Report and Resolutions of the House of Representatives
follow. The Minority presented a long report sharply condemning the action of
the State authorities and a series of resolutions in support of the
jurisdiction of the Federal Government. This was offered as a substitute for
the Majority report, but was rejected by a vote of 25 yeas to 67
nays. (Journal of the House, 1809-10, 403-424; Amer. Register,
1810, 113-136.) In the Senate a committee brought in an extensive report in
justification of the position taken by the State, and resolutions renewing
their proposal of a constitutional amendment for the establishment of a "
disinterested tribunal" to determine disputes between the General and the
State governments, and also recommending the reward of the members of the
militia who had suffered conviction. (Journal of the Senate, 1809-10,
376-382.) Neither these resolutions nor those of the House were acted upon by
the Senate. For Text and action thereon, cf. Journal of the
House, 1809-10, 250-254, 402-426, 433-436; Journal of the Senate,
* * * From this view of the subject, the committee are of opinion, that the
constitution of the United States, has been violated by the decision of the
judge, and the constitutional rights of the state invaded. The question then
occurs, in what manner is a state to defend her rights against such invasion?
It has already been observed, that the constitution of the United States
guarantees to each state a republican form of government; that the powers not
delegated to the United States, are reserved to the states respectively without
entering into a detail of the rights reserved or not delegated, suffice it to
say, that "the right of acquiring, possessing and protecting property is
one." If this be not one of the powers not delegated, then indeed a state
is in a worse and more degraded situation than the most obscure individual,
whose property cannot be taken from him when fairly acquired, without his
consent, even for publick use, without a compensation. In the case before us,
all the constituted authorities of the state, have uniformly asserted their
rights, and protested against every attempt to infringe them.
It may be asked, who is to decide the question? If it be alledged the state
has not the right, it may justly be replied, the power invading it, has not. It
is a case unprovided for in the constitution, and there is no common umpire. *
Resolved by the Senate and House of Representatives, That after most
solemnly declaring their readiness, cheerfully to submit to all legal and
constitutional decisions of the federal courts, they cannot but express their
highest disapprobation of what they conceive to be the illegal and
unconstitutional conduct of the same in the case of Gideon Olmstead. (59
yeas to 33 nays.)
Resolved, That the sovereignty and independence of the states, as
guaranteed by the constitution of the United States, ought to be most zealously
guarded, and every attempt to depreciate the value of those rights, and to
consolidate these states into one general government, is hostile to the liberty
and happiness of the people, and merits our most decided disapprobation. (88 to
Resolved, That the governor was justified in the efforts which he
made to sustain the rights and sovereignty of the state, and the promptitude
and fidelity with which he executed his legal and constitutional powers, under
the act of April second, one thousand eight hundred and three, merits our
highest approbation. (60 to 33.)
Resolved, That we highly approve of the conduct of our predecessors,
in requesting the members of both houses of congress to use their best
endeavours to have the constitution of the United States so amended, that an
impartial tribunal be appointed to determine disputes between the general and
Resolved, That the governor be requested to transmit a copy of these
resolutions, together with the foregoing statement, to each of the senators and
representatives in congress from this state.
26. Resolutions of Pennsylvania against the Bank.
January 11, 1811.
The attempt to secure the renewal of the charter of the United States Bank
in 1811, called out resolutions in opposition from the legislatures of
Pennsylvania and Virginia. The following resolutions of the General Assembly of
Pennsylvania are of especial interest in view of the state rights doctrines
asserted in the Preamble. As first passed by the House the language of the
Preamble was even stronger, and closely followed the text of the first resolve
of the Kentucky Resolutions of 1798, but it was amended by the Senate by a vote
of 20 to 8 and agreed to by the House in the form given below.
References: Text given in Pamphlet Laws of Penna., 1810-11, 268, 269,
also in Amer. State Papers, Finance, II, 467. Text as passed by the
House with action of the Senate, Senate Journal of Penna., 1810-11, 92,
93, 104, 105. McMaster, III, 386-389; Adams, V, 207, 328-337; Schouler, II,
The people of the United States by the adoption of the federal constitution
established a general government for special purposes, reserving to themselyes
respectively, the rights and authorities not delegated in that instrument. To
the compact thereby created, each state acceded in its character as a state,
and is a party. The act of union thus entered into being to all intents and
purposes a treaty between sovereign states, the general government by this
treaty was not constituted the exclusive or final judge of the powers it was to
exercise; for if it were so to judge then its judgment and not the constitution
would be the measure of its authority.
Should the general government in any of its departments violate the
provisions of the constitution, it rests with the states, and with the people,
to apply suitable remedies.
With these impressions, the legislature of Pennsylvania, ever solicitious to
secure an administration of the federal and state governments, conformably to
the true spirit of their respective constitutions, feel it their duty to
express their sentiments upon an important subject now before congress, viz.,
the continuance or establishment of a bank. From a careful review of the powers
vested in the general government, they have the most positive conviction that
the authority to grant charters of incorporation, within the jurisdiction of
any state without the consent thereof is not recognized in that instrument,
either expressly, or by a warrantable implication; Therefore,
Resolved, By the Senate and House of Representatives of the Commonwealth
of Pennsylvania, in General Assembly met, That the senators of this state
in the senate of the United States, be, and they are hereby instructed, and the
representatives of this state in the house of representatives of the United
States be, and they hereby are requested to use every exertion in their power,
to prevent the charter of the bank of the United States from being renewed, or
any other bank from being chartered by Congress, designed to have operation
within the jurisdiction of any state, without first having obtained the consent
of the legislature of such state.
Resolved, That the governor be, and he hereby is requested to forward
a copy of the above preamble and resolution, to each of the senators and
representatives of this state, in the Congress of the United States.
27. Resolutions of Virginia against the Bank.
January 22, 1811.
The following resolutions were disregarded by Senator Richard Brent, of
Virginia, thereupon the General Assembly adopted a Report elaborately
presenting an historical argument in favor of the doctrine of instructions and
called upon Senator Brent to resign. Acts of Virginia, 1811-12, 143-152.
Texts of following resolutions, Acts of Virginia, 1810-11, 121; also,
Amer. State Papers, Finance, II, 467; Annals, 1810-11, 201.
The General Assembly of Virginia view with the most serious concern the late
attempts which have been made to obtain from Congress a renewal of the charter
incorporating the Bank of the United States. This assembly are deeply impressed
with the conviction that the original grant of that charter was
unconstitutional; that congress have no power whatever to renew it; and that
the exercise of such a power would be not only unconstitutional, but a
dangerous encroachment on the sovereignty of the states — Therefore,
Resolved, That the senators of this state in the Congress of the
United States be instructed, and our representatives most earnestly requested,
in the execution of their duties as faithful representatives of their country,
to use their best efforts in opposing by every means in their power the renewal
of the charter of the bank of the United States.
Massachusetts and the Militia Question. 1812-1814.
When war was declared against Great Britain, June 18, 1812, (U. S. Stat.
at Large, II, 755) the Federalist minority issued an Address to their
Constituents, protesting both against the war and the manner in which the
declaration of war had been secured. That this war was "a part) and not a
national war" and entered upon by the United States "as a divided
people" was soon evident by the position taken by the authorities of
several of the New England States, relative to the power of the Federal
Government over the State Militia. By authority of the President, General
Dearborn, on June 22, addressed the Governors of Massachusetts and Connecticut,
making requisition for certain detachments of their militia, for service in the
defence of the coast, but did not include in the call any officer of a high
rank. Governor Strong, of Massachusetts, not considering the call warranted by
the Constitution, did not comply with the requisition, for reasons set forth in
his correspondence with the Secretary of War, and as later stated in his Speech
to the Legislature. Renewed requisitions from General Dearborn, and the
Secretary of War during July, finally led to the submission of the questions
involved to the Supreme Judicial Court of the State. An extract from their
The attitude of Massachusetts and Connecticut was severely condemned by
President Madison in his message of November 4, 1812. (Richardson, Messages
and Papers of the Presidents, I, 516.) The question still remained
unsettled when in the summer of 1814 the coast of Maine was invaded, Governor
Strong at the request of General Dearborn, called out the militia, but as they
were placed under the command of a general of the State instead of the United
States, the administration refused to be responsible for their maintenance
(Secretary of War Monroe to Strong, Sept. 17, 1814, Slate Papers, Military
Affairs, 1, 614), and left Massachusetts and the other New England States
to defend themselves largely at their own cost. It was this situation that
immediately led to the issuing of the call for the Hartford Convention. (See
post, Nos. 36, 37.)
In 1817 the State of Massachusetts presented its claim to the Federal
Government for reimbursement of the expenses contracted in maintaining the
defence of the coast, and finally after an agitation of thirteen years, and the
renunciation by the Governor and both branches of the Legislature of the
principles maintained by the former authorities of the State, by act of May 31,
1830 (May session, 1823, Resolves of Mass., 1819-24, 634-636, 640, 641,
644, 645), Massachusetts was awarded about one-half of the amount of her claim.
(U. S. Stat. at Large, IV, 428.) In 1827 the Supreme Court of the United
States in Martin v. Mott (12 Wheaton, 19) decided adversely in a
case involving the principles and position taken by the authorities of the New
England States in regard to the constitutional rights of the Federal Government
over the Militia.
References: SOURCES. An ADDRESS of Members of the House of
Representatives of the Congress of the United States: To their CONSTITUENTS
on the subject of the WAR with Great Britain (Boston, 1812); also
in the Annals, 12 Cong., 1 sess., 2196-2221; Niles'
Register, II, 309-315. The Senate of the Mass. Legislature, which was
Republican, issued an Address to the People of the Commonwealth (Boston,
1812, 8°, 28 pages); also in Niles, II, 308, 309; in which they
"say with assurance, that a deep and deadly design is formed against our
happy Union." The House which was Federalist also issued An Address to
the People of Massachusetts (n. t. p., 1812, 8°, 14 pages); also in
Niles, II, 417-419. The Correspondence between the Secretary of
War, the Governor and United States military officers is given in the
Annals, 12 Cong., 2 sess., Appx., 1295-1304; Amer.
State Papers, Military A/airs, I, 321-325, 607-608, 610-614; Senate
Doc., 18 Cong. 1 sess., II, No. 43, 135, 137-139. 142-164.
All the important documents in connection with the Mass. claim are to be found
in the above, and in Military Affairs, III, 8-10, 104-108; IV, 293-295;
Resolves of Mass., 1828-31, 256-263; Cong. Debate, 1829-30,
357-359. GENERAL REFERENCES: Adams, VI, 305, 309, 399-402; VIII, 219-223, 272;
Barry, Mass., III, 379-390; Dwight, Hartford Convention, 233-275
in passim, 282-285; Hildreth, VI, 319-325, 372-374, 484-500, 531; McMaster,
III, 543-546; IV, 231, 244-247; Schouler, II, 356, 422-424; Von Holst, I,
233-246, 259-260; Adams, New Eng. Federalism; Kent, Commentaries
(13th ed.), I, 263-265; Story (5th ed.), II, 121-126; Winsor, Memorial Hist.
of Boston, III, 211-215, 303-311.
28. Extracts from the Letter of Governor Strong of Massachusetts to
Secretary of War Eustis.
August 5, 1812.
The following extracts, together with the Opinion of the Judges, present
briefly the reasons for the refusal of Governor Strong to honor the call for
the militia. The Governor's views are set forth more fully in his Speech to the
General Court, October 14, 1812. (Resolves of Mass., 1812-15, 75, 78;
also extract in Dwight, 241-243.) The Federalist House in their Answer,
expressed their "unqualified approbation of the Governor's course."
(Ibid., 82, 83.) The Republican Senate, in their Answer, dissented from
the opinions of the Governor, and declared that "the jealousy with which
your Excellency regards the authority of the National Administration might
suggest an apprehension for the safety of the Union." (Ibid.,
* * * As an opinion generally prevailed, that the Governor had no authority
to call the militia into actual service, unless one of the exigencies
contemplated by the constitution exists,1 I thought it expedient to
call the council together, and, having laid before them your letter, and those
I have received from General Dearborn, I requested their advice on the subject
1 "Congress may provide for calling forth the militia to
execute the laws of the Union, suppress insurrection, and repel invasion."
The Council advised "that they were unable from a view of the
Constitution of the United States, and the letters aforesaid, to perceive that
any exigency exists which can render it advisable to comply with the said
requisition. But, as upon important questions of law, and upon solemn
occasions, the Governor and Council have authority to require the opinion of
the Justices of the Supreme Judicial Court, it is advisable to request the
opinion of the Supreme Court upon the following questions, viz.:
"1st. Whether the commanders in chief of the militia of the several
states have a right to determine, whether any of the exigencies contemplated by
the constitution of the United States exist; so as to require them to place the
militia, or any part of it, in the service of the United States, at the request
of the President, to be commanded by him pursuant to acts of Congress?"
"2nd. Whether, when either of the exigencies exist, authorizing the
employing the militia in the service of the United States, the militia thus
employed, can be lawfully commanded by any officer, but of the militia, except
by the President of the United States?"
I enclose a copy of the answer given by the judges to these questions. * * *
I am fully disposed to afford all the aid to the measures of the national
government which the constitution requires of me, but, I presume it will not be
expected, or desired, that I shall fail in the duty which I owe to the people
of this state, who have confided their interests to my care.
[Senate Doc. 13 Cong. 3 sess. Report of Com. on Military Affairs, Feb. 28,
29. Extract from the Opinion of the Judges of Massachusetts on the
Militia Question, 1812. 1
1 Signed by Judges Parsons, Sewall and Parker.
On the construction of the Federal and State constitutions must (depend the
answers to the several questions proposed. As the militia of the several states
may be employed in the service of the United States, for the three specific
purposes of executing the laws of the Union, of suppressing insurrections, and
of repelling invasions, the opinion of the judges is requested, whether the
Commanders-in-Chief of the militia of the several states have a right to
determine whether any of the exigencies aforesaid exist, so as to require them
to place the militia, or any part of it, in the service of the United States,
at the request of the President, to be commanded by him pursuant to acts of
It is the opinion of the undersigned, that this right is vested in the
Commanders-in-Chief of the militia of the several states.
The Federal Constitution provides, that whenever either of these exigencies
exist, the militia may be employed, pursuant to some act of Congress, in the
service of the United States; but no power is given, either to the President or
to Congress, to determine that either of the said exigencies do in fact exist.
As this power is not delegated to the United States by the Federal
Constitution, nor prohibited by it to the states, it is reserved to the states,
respectively; and from the nature of the power, it must be exercised by those
with whom the states have respectively entrusted the chief command of the
It is the duty of these commanders to execute this important trust,
agreeably to the laws of their several states, respectively, without reference
to the laws or officers of the United States, in all cases, except those
specially provided in the Federal Constitution. They must, therefore, determine
whether either of the special cases exist, obliging them to relinquish the
execution of this trust, and to render themselves and the militia subject to
the command of the President. A different construction, giving to Congress the
right to determine when these special cases exist, authorizing them to call
forth the whole of the militia, and taking them from the Commanders-in-chief of
the several states, and subjecting them to the command of the President, would
place all the militia, in effect, at the will of Congress, and produce a
military consolidation of the states, without any constitutional remedy against
the intentions of the people, when ratifying the Constitution. Indeed, since
passing the act of Congress of February 28, 1795, chapter 101, vesting in the
President the power of calling forth the militia when the exigencies mentioned
in the Constitution shall exist, if the President has the power of determining
when those exigencies exist, the militia in the several states is, in effect,
at his command, and subject to his control.
No inconvenience can reasonably be presumed to result from the construction
which vests in the Commanders in Chief of the militia, in the several states,
the right of determining when the exigencies exist, obliging them to place the
militia in the service of the United States. These exigencies are of such a
nature, that the existence of them can be easily ascertained by, or made known
to, the Commanders in Chief of the militia; and when ascertained, the public
interest will produce prompt obedience to the acts of Congress.
Another question proposed to the consideration of the judges, is, whether,
when either of the exigencies exist, authorizing the employing of the militia
in the service of the United States, the militia thus employed can be lawfully
commanded by any officer not of the militia, except by the President of the
* * * The officers of the militia are to be appointed by the states, and the
President may exercise his command of the militia by officers of the militia,
duly appointed; but we know of no constitutional provision authorizing any
officer of the army of the United States to command the militia, or authorizing
any officer of the militia to command the army of the United States. The
Congress may provide laws for the government of the militia when in actual
service; but to extend this power to placing them under the command of an
officer not of the militia, except the President, would render nugatory the
provision that the militia are to have officers appointed by the states. * * *
[Senate Doc. 13 Cong. 3 sess. Report of Com. on Military Affairs, Feb. 28,
30. Report and Resolutions of Connecticut on the Militia Question.
August 25, 1812.
Upon the receipt of General Dearborn's requisition, Governor Griswold
convened the Council, June 29, 1812. This body advised him not to comply with
the requisition on grounds similar to those afterwards taken by the authorities
of Massachusetts. Upon the renewal of the requisition by the Federal
authorities, Governor Griswold, on August 4, reconvened the Council, which body
again recommended a non-compliance with the requisition, whereupon the Governor
called the General Assembly in extra session on August 25, and in his message
reviewed the situation. The General Assembly, on the same day, adopted a
Report and Resolutions, extracts from which follow, and also a
Declaration containing a justification of their action. In 1814 a
similar controversy to that with Massachusetts arose between the State
authorities and the Federal administration over the commanding officer of the
State militia, when called into the Federal service.
References: Text, Report of Committee, August 25, 1812, on that
part of the Governor's Speech which relates to his correspondence with the
Secretary of War. (New Haven, 1812, 8°, 14 pages.) Also given in
Niles, III, 22-25. Message of Governor Griswold, Special Session,
with documents accompanying the same. (New Haven, 1812, 8°, 22 pages);
also given in Niles, III, 4, 5. The text of these and earlier messages
of the Governor and action of Council are given in Dwight, Hartford
Convention, 243-248, 259-267; Proclamation of August 6, 1812,
announcing proceedings of Council is in Niles, II, 389. Report of
committee of Legislature on the conflict over the command of the militia, Oct.,
1814, Niles, VII, sup., 106, 107. For Correspondence of the
Governor and the Federal authorities, see Amer. State Papers, Military
Affairs, I, 325, 326, 608, 614-621; Annals, 12 Cong., 2
Sess., Appx., 1304-1310; Report of Com. on Military Affairs, Feb.
28, 1815, State Papers, 13 Cong., 3 sess., 18-22, 55-80.
For general references, see ante p. 56.
The committee consider it as of the highest importance, that no ground
should be taken, on this subject, but that which is strictly constitutional,
and that, being taken, it should be maintained at every hazard.
It is very apparent that the claim set up by the administration of the
government of the United States, is, that when a war has been declared to
exist, between this and any foreign country, the militia of the several states
are liable to be demanded, by the administration of the government of the
United States, to enter their forts, and there remain, upon the presumption,
that the enemy may invade the place or places, which they are ordered to
garrison and defend. And that for this purpose, they may be ordered to any part
of the United States.
If then the militia can be constitutionally required to man the garrison of
the United States, they may continue to be so required, as long as the danger
continues to exist; and to become, for all the purposes of carrying on the war,
within the United States, standing troops of the United States. And a
declaration of war made by the administration of the government of the United
States, and announced to the governors of the states, will substantially
convert the militia of the states into such troops. Before it is agreed that
the states have ceded such a power to the United States the question ought to
be examined with much attention.
On the fullest deliberation, your committee are not able to discover that
the constitution of the United States justifies this claim.
The people of this state were among the first to adopt that constitution.
They have been among the most prompt to satisfy all its lawful demands, and to
give facility to its fair operations — they have enjoyed the benefits
resulting from the union of the states; they have loved, and still love, and
cherish that union, and will deeply regret, if any events shall occur to
alienate their affection from it. They have a deep interest in its
preservation, and are still disposed to yield a willing and prompt obedience to
all the legitimate requirements of the constitution of the United States.
But it must not be forgotten, that the state of Connecticut is a FREE
SOVEREIGN and INDEPENDENT state; that the United States are a confederacy
of states; that we are a confederated and not a consolidated republic. The
governor of this state is under a high and solemn obligation, "to
maintain the lawful rights and privileges thereof, as a sovereign, free and
independent state," as he is "to support the constitution of
the United States," and the obligation to support the latter, imposes
an additional obligation to support the former. The building cannot stand, if
the pillars upon which it rests, are impaired or destroyed. The same
constitution, which delegates powers to the general government, inhibits the
exercise of powers, not delegated, and reserves those powers to the states
respectively. The power to use the militia "to execute the laws, suppress
insurrection and repel invasions," is granted to the general government.
All other power over them is reserved to the states. And to add to their
security, on the all important subject of their militia, the power of
appointing their officers is expressly reserved. If then the
administration of the general government demand the militia, when neither of
the exigencies provided for by the constitution have occurred, or to be used
for purposes not contemplated by that instrument, it would be not only
the height of injustice to the militia, to be ordered into the service of the
United States, to do such duty, but a violation of the constitution and laws of
this state, and of the United States. Once employed in the service of the
United States, the militia would become subject to the articles of war, and
exposed to be punished with death, if they should leave a service, which by the
constitution of their country, they are not bound to perform.
From an attentive consideration of the constitution and laws of the United
States, it is evident to the Committee, that the militia of the several states
are to be employed by the United States, for the purpose only of performing
special services, in cases where no other military force could be conveniently
had or properly exercised; and when those services are performed, they are to
return to their several homes. The committee cannot believe, that it was ever
intended that they should be liable, on demand of the president upon the
governor of the state, to be ordered into the service of the United States, to
assist in carrying on an offensive war. They can only be so employed, under an
act of the legislature of the state, authorizing it. On the expediency of
passing such a law, or adopting any measures which the war may render
necessary, the committee do not consider it is as within their commission to
If congress, or the president of the United States shall apply to this
state, to furnish troops to assist in carrying on the war, the request will
doubtless meet with the attention which it will merit.
The committee will only take the liberty to remark, that, should the manner
in which the war is waged or prosecuted, induce the enemy to retaliate, by an
actual invasion of any portion of our territory, or should we be threatened
with invasion or attack from any enemies, the militia will always be prompt and
zealous to defend their country.
The government of this state, as it ever has been, so it will continue to
be, ready to comply with all constitutional requisitions of the general
government. Faithful to itself and posterity, it will be faithful to the United
31. Rhode Island and the Militia Question.
October 6, 1812.
The following extract from the message of Governor William Jones to the
General Assembly, October 6, 1812, gives the opinion of the Council of War upon
the call for the militia made by the Federal authorities. For text see Acts
and Resolves of Rhode Island General Assembly, October, 1812, 3-5; also in
Niles, III, 179,180. The action of the Governor and Council was approved
at the same session, Acts and Resolves, 34. The Correspondence of the
Governor and the Federal authorities and other documents for the period
1812-14, is in Amer. State Papers, Military Affairs, I, 608, 621, 622;
Report of Com. on Military Affairs, Feb. 28, 1815, 13 Cong., 3
sess., Senati Doc., 80-85. For subsequent action of the State,
see post, No. 38.
[Upon the receipt of a letter from General Dearborn, on July 21, requesting
him to order certain of the militia into the service of the United States,
Governor Jones says,] I was induced to convene a council of war, and take their
opinion of the measures most proper to adopt under these circumstances: * * *
On the question whether the militia of this State can be withdrawn from the
authority thereof, except in particular cases provided for by the constitution
of the United States, they are unanimously of opinion, that they could not. On
the second question, viz., when the militia are called for by the President of
the United States, who is to be the judge whether those exigencies provided for
by the constitution of the United States, exist or not? They were also
unanimously of opinion that the executive of the State must, and of right ought
to be judge. * * *
It is very much to be regretted that there should exist a difference of
opinion between the President of the United States and the government of the
individual States in any case, and particularly so as it respects the disposing
of the detailed militia, when the nation is involved in war. Satisfied,
however, that the principle adopted, and the course this State has pursued on
that subject is not only perfectly in agreement with the letter, but with the
spirit of the Constitution of the United States, I conceive an adherence
thereunto indispensable; but should this General Assembly think the course
erroneous, there is now an opportunity to correct it.
32. Vermont and the Militia Question. 1813-1814.
In 1813, Governor Martin Chittenden took a similar view of the
constitutional relation of the state militia to the general government as that
already adopted by the authorities of other New England States. In his speech
to the Legislature, October 23, he outlined his position, as is given below.
The majority of the Assembly adopted a report indorsing his views by a vote of
96 to 89, but 79 of the minority entered a protest on the Journal. (Assembly
Journal, 1813, 137, 198.) By a Proclamation of November 10, the Governor
commanded the recall of that portion of the militia which "has been
ordered from our frontiers for the defence of a neighboring State, and has been
placed under the command and at the disposal of an officer of the United
States, out of the jurisdiction or control of the Executive of this
State." The refusal of the troops to obey his orders, and the arrest of
his representative, was followed by the introduction of a resolution in
Congress instructing the prosecution of the Governor for treason. (Annals of
Cong., 1813-14, I, 859-861.) A counter resolution was presented in the
Legislature of Massachusetts pledging the support of the State to the Governor
and people of Vermont in their efforts to maintain their constitutional rights.
(Jour. of the House of Rep. of Mass. (MS.), Jan. 14, 1814, No. 34, 173.)
This led the Legislature of New Jersey, February 12, 1814, to adopt the
following resolution: "Resolved, That the Legislature regards, with
contempt and abhorrence, the ravings of an infuriated faction, either as
issuing from a legislative body, a maniac governor, or discontented or
ambitious demagogues; that the friends of our country and government may rest
assured, the people of this State will meet internal insurection with the same
promptitude they will the invasion of a cruel, vindictive and savage foe."
(Niles' Register, VI, 11.) The Legislature of Pennsylvania, March 10,
1814, also adopted a Report and Resolutions condemning the action of the
Governor and disapproving the proposed resolutions of Massachusetts as
"evidently intended to intimidate" and "accompanied by a
threat," and "calculated to add to the calamities of the war —
the horrors of a civil war," and finally resolving "that they view
with the utmost concern and disapprobation every attempt to screen from just
punishment any individual or individuals, however elevated by station, who may
violate the Constitution or laws of the United States, or who may directly
adhere to or afford aid or comfort to the enemies of our beloved country."
(Amer. State Papers, Misc., II, 238, 239.) When the question of the
command of the militia was raised in 1814, the Council of Vermont, when
consulted by the Governor, unanimously resolved, October 28, 1814, that the
"militia are to be commanded by officers appointed by the State, or by the
President in person."
References: Text of Governor's Speech, is in Records of the Governor and
Council of the State of Vermont, VI, 420; Proclamation of Nov. 10, 1813,
Ibid., 492; Reply of the Militia, Ibid., 493, 494; Report and
Resolves of the Council, Oct. 28, 1814, Ibid, 80, 85, 89, 92. The above
documents are also in Niles, V, 181, 212, 230, 264, 423; VII, Sup.
99-105. See also, Adams, VII, 366, 367; VIII, 222; Hildreth, VI, 452, 453, 468;
McMaster, IV, 226, 227.
Extract from Governor Chittenden's Speech. October 23, 1813.
The importance of the subject of the militia will not fail to claim your
deliberate consideration. 7 have always considered this force peculiarly
adapted and exclusively assigned for the service and protection of the
respective States; excepting in cases provided for by the national
constitution, viz., to execute the laws of the Union, suppress insurrection,
and repel invasions. It never could have been contemplated by the framers
of our excellent constitution, who, it appears, in the most cautious manner,
guarded the sovereignty of the States, or by the States, who adopted it, that
the whole body of the militia were, by any kind of magic, at once to be
transformed into a regular army for the purpose of foreign conquest; and it is
to be regretted, that a construction should have been given to the
constitution, so peculiarly burdensome and oppressive to that important class
of our fellow citizens.
33. Massachusetts on the Extension of Territorial Limits.
June 16, 1813.
The spring election of 1813 resulted in the Federalists securing control of
both branches of the General Court, as well as in the re-election of Governor
Strong. The Governor in his Speech referred to territorial extension
(Resolves of Mass. (1812-15), 231) and the House in its Answer
considered the effect of extension on the future influence of New England.
(Ibid., 238, 239.) Josiah Quincy, who had opposed the admission of
Louisiana, in a strong state rights speech in Congress January 14, 1811, had
declined a re-election to that body, but accepted a seat in the State Senate,
and at once took the lead in opposing the policy of the Federal Government. He
was Chairman of the Committee that drew up the Report and Resolutions relative
to the extension of Territory, extracts from which follow. A Remonstrance
against the war, June 15, 1813, also contained a protest against the extension
References: The text of the Report and Resolutions is given in
Resolves of Mass. (1812-15), 310-318; also in Niles, IV, 285-287.
For the Remonstrance against the war, see Resolves of Mass., 338,
339; also in Amer. State Papers, Misc., II, 210-214; and in
Niles, IV, 297-301; the Protest of the Minority is also included
in last two references. Quincy's speech in Congress, cf. Annals, 11
Cong., III, 523-542; Johnston, Amer. Orations (ed. 1897), I, 180-204;
Edmund Quincy, Life of Josiah Quincy, 205-218. For letter of Pickering
on the resolutions, cf. Ibid., 323, 324. General references: Of especial
value, Quincy's Quincy, chs. XII, XIII; Adams, V, 325, 326; VII, 64-66;
Barry, Mass., III, 398, 399; Hildreth, VI, 226-228, 426-429; McMaster,
III, 376-378; IV, 211-213; V, 408-411; Schouler, II, 314, 315, 420-422; Von
Holst, I, 250-252.
The question touching the admission, into the Union, of states, created in
territories, lying without the ancient limits of the United States, has been
considered, by your Committee, in relation to constitutional principles and
political consequences. By an Act of the Congress of the United States, passed
the 8th day of April, 1812, entitled "an Act for the admission of the
State of Louisiana into the Union and to extend the laws of the United States
to the said State," the said State of Louisiana was admitted into the
Union on an equal footing with the other States. This act was, in the opinion
of your Committee, a manifest usurpation, by the Congress of the United States,
of a power not granted to that body by the federal constitution. The State of
Louisiana was formed, in countries situated beyond the limits of the old
United States; according as those limits were established by the treaty of
Paris, commonly called the Treaty of Peace, in the year 1783; and as they
existed, at the time of the formation and adoption of the federal constitution.
And the position which your Committee undertake to maintain is this, that the
Constitution of the United States did not invest Congress with the power to
admit into the Union, States created in territories not included within the
limits of the United States; as they existed, at the peace of 1783, and at
the formation and adoption of the Constitution.
Now the State of Louisiana lies without those limits; and on this
distinction the whole question of constitutional right depends. The power,
assumed by Congress, in passing this act for the admission of Louisiana, if
acquiesced in, is plainly a power to admit new States into this Union, at their
discretion, without limit of place or country. Not only new States may be
carved, at will, out of the boundless regions of Louisiana, but the whole
extent of South America, indeed of the globe, is a sphere, within which it may
operate without check or control, and with no other limit than such as Congress
may choose to impose on its own discretion. [Here follows a detailed
examination of the Constitution in refutation of the constitutionality of
annexation and admission of new States.]
Now it is very apparent to your Committee, that the power to admit States,
created in territories, beyond the limits of the old United States is one of
the most critical and important, whether we consider its nature, or its
consequences. It is, in truth, nothing less than the power to create in foreign
countries, new political sovereignties, and to divest the old United States of
a proportion of their political sovereignty, in favor of such foreigner. It is
a power, which, in the opinion of your Committee, no wise people ever would
have delegated, and which, they are persuaded, the people of the United States,
and certainly, the people of Massachusetts, never did delegate. The proportion
of the political weight of each foreign State, composing this union, depends
upon the number of the States, which have a voice under the compact. This
number, the Constitution permits Congress to multiply, at pleasure, within the
limits of the original States, observing, only, the expressed limitations, in
the Constitution. To pass these limitations and admit States, beyond the
ancient boundaries, is, in the opinion of your Committee, an usurpation, as
dangerous as it is manifest, inasmuch as these exterior States, after being
admitted on an equal footing with the original States, may, and as they
multiply, certainly will become, in fact, the arbiters of the destinies of the
nation; by availing themselves of the contrariety of interests and views which
in such a confederacy of States necessarily arise, they hold the balance among
the respective parties and govern the States, constitutionally composing the
Union, by throwing their weight into whatever scale is most conformable to the
ambition or projects of such foreign States.
Your Committee cannot, therefore, but look with extreme regret and
reprobation upon the admission of the territory of Louisiana to an equal
footing with the original and constitutionally admitted States; and they cannot
but consider the principle, asserted by this admission, as an usurpation of
power, portending the most serious consequences to the perpetuation of this
Union and the liberties of the American people.1
Although the character of this usurpation and its ultimate consequences
ought, naturally, to excite an extreme degree of alarm in this quarter of the
country, as it indicates that new and unconstitutional arbiters, remote from
our interests and ignorant of them, are admitted into the Union, yet the nature
of the remedy is, in the opinion of your Committee, a subject of much more
difficulty than the certainty of the mischief.
1 For action of Massachusetts in 1804 and 1809 in consequence of
the annexation of Louisiana, see ante, 27, and note.
Nevertheless, in the opinion of your Committee, the Legislature of
Massachusetts owe it to themselves, to the people of this State and to future
generations, to make an open and distinct avowal of their sentiments upon this
topick, to the end that no sanction may appear to be derived from their
silence; and also that other States may be led to consider this intrusion of a
foreign State into our confederacy, under this usurped authority, in a
constitutional point of view as well as in its consequences, and that, thereby,
a concurrence of sentiment and a coincidence of councils may result; whence
alone can be hoped a termination of this usurpation, and of the evils, which
are, apparently, about to flow from it.
Your Committee, therefore, propose for the adoption of the Legislature, the
following resolutions: —
Resolved, As the sense of this Legislature, that the admission into
the Union of States created in countries not comprehended within the original
limits of the United States, is not authorized by the letter or the spirit of
the federal Constitution.
Resolved, That it is the interest and duty of the people of
Massachusetts, to oppose the admission of such States into the Union, as a
measure tending to the dissolution of the confederacy.
Resolved, That the Act passed the eighth day of April, 1812, entitled
"an Act for the admission of the State of Louisiana into the Union and to
extend the laws of the United States to the said State," is, in the
opinion of this Legislature, a violation of the Constitution of the United
States; and that the Senators of this State, in Congress, be instructed, and
the Representatives thereof requested, to use their utmost endeavors to obtain
a repeal of the same.
Resolved, That the Secretary of this Commonwealth be directed to
transmit a copy of these Resolutions to each of the Senators and
Representatives of this Commonwealth, in the Congress of the United States.
[Resolves of Massachusetts (1813), 310-318. Boston, 1813.]
34. The General Court of Massachusetts on the Embargo.
February 22, 1814.
Instead of heeding the Remonstrance of Massachusetts of June 15, 1813, the
administration not only continued its previous policy towards the New England
States, but added a new grievance through the enactment of a new and very
stringent embargo law, December 17, 1813, (U. S. Stat. at Large,
III, 88-93) which, it was charged, was aimed directly at New England. Upon
the assembling of the General Court of Massachusetts at the opening of the year
1814, memorials and remonstrances from 38 towns poured in upon that body, as
had been the case at the time of the embargo of 1808-09 (Cf. ante,
26-36), denouncing the war and praying for relief from the unbearable
restrictions placed upon commerce (Jour. of the House of Rep. (MS.),
May, 1813 to Feb., 1814, 174, 251, 260, 293). These were referred to a Joint
Committee for consideration. On February 18 the Committee presented their
report. It is sometimes known as "Lloyd's Report," from Wm. Lloyd,
the Chairman of the Committee. The Report and Resolutions, extracts from which
follow, were adopted by the House on the same day by a vote of 178 yeas
to 43 nays (Ibid., 348). It was debated in the Senate and finally
passed, February 22, by a vote of 23 yeas to 8 nays (Jour. of
the Senate (MS.), May, 1813 to Feb., 1814, 372, 386, 391). In compliance
with the last of these resolves Governor Strong submitted these Resolutions,
May 30. 1814, to the newly elected General Court, but the embargo and
non-importation laws having been repealed the legislature refrained for the
time being from calling the proposed convention. For subsequent action, see
post, Nos. 36 and 37.
References: The text, printed by order of the Legislature, February 28,
1814, is in Legislative Documents, 1807-14, No. 19, 381-392; also in
Niles, VI, 4-8. Governor's Speech and Replies of House and Senate,
Resolves of Mass., May 30, 1814; Niles, VI, 250, 251, 273-275;
Adams, VIII, 1-15; Barry, Mass., III, 401, 402; Hildreth, VI, 455, 456,
465-476, 484; McMaster, IV, 222-229; V, 411; Von Holst, I, 253-255.
The people, in their numerous memorials from all quarters of the
commonwealth, appear to despair of obtaining redress from that government,
which was established "To PROMOTE THE GENERAL WELFARE." They see that
the voice of the New England States, whose interests are common, is lost in the
national Councils, and that the spirit of accommodation and regard to mutual
safety and advantage, which produced the constitution and governed its early
administration, have been sacrificed to the bitterness of party, and to the
aggrandizement of one section of the union, at the expense of another.
Various are the forms in which these sentiments and feelings have been
expressed to the legislature; but the tone and spirit, in all, are the same.
They all discover an ardent attachment to the Union of these States, as
the true source of security and happiness to all, and a reverence for the
national constitution, as calculated in its spirit and principles to insure
that Union, and establish that happiness: but they are all stamped with the
melancholy conviction that the basis of that Union has been destroyed by a
practical neglect of its principles; and that the durability of that
Constitution has been endangered by a perversion and abuse of its powers.
The memorialists have then enumerated the causes which have brought them to
this unhappy conviction. They have seen a power grow up in the southern and
western sections of the Union, by the admission and multiplication of states,
not contemplated by the parties to the constitution, and not warranted by its
principles; and they foresee an almost infinite progression in this system of
creation, which threatens eventually to reduce the voice of New England, once
powerful and effectual in the national councils, to the feeble expression of
colonial complaints, unattended to and disregarded.
[Here follows an enumeration of the other acts of the Federal Government
inimical to New England, from the laying of the embargo to the prohibition of
"their shore fishery and coasting trade" "by an act more
unfeeling and odious than the Boston port bill, which aroused the colonies into
This act is denounced by all the memorialists in the warmest and most
energetic language as a gross and palpable violation of the principles of the
Constitution; and they express decidedly their opinion, that it cannot be
submitted to without a pusillanimous surrender of those rights and liberties,
which their ancestors brought to these shores, which they fought and bled to
maintain, and which we, their descendents, ought to be ready to defend, at the
same expense and hazard, or forfeit the character of freemen.
With such a display of grievances, sufferings, and apprehensions before
them, couched in terms of affecting eloquence, and breathing a spirit of
firmness and resolution to procure by some means competent relief, your
Committee cannot but be forcibly impressed. They believe in the existence of
those grievances, and in the cause to which they have been ascribed. They
believe that this war, so fertile in calamities, and so threatening in its
consequences, has been waged with the worst possible views and carried on in
the worst possible manner; forming a union of wickedness and weakness, which
defies for a parallel the annals of the world. We believe, also, that its worst
effects are yet to come; that loan upon loan, tax upon tax, and exaction upon
exaction, must be imposed, until the comforts of the present, and the hopes of
the rising generation are destroyed. An impoverished people will be an enslaved
People. An army of sixty thousand men, become veteran by the time the war is
ended, may be the instrument, as in former times, of destroying even the forms
of Liberty; and will be as easy to establish a President for life, by
their arms, as it has been for four years by intrigue. We tremble for
the liberties of our Country ! We think it the duty of the present generation,
to stand between the next and despotism.
The Committee are of opinion that the late act laying an Embargo is
unconstitutional, and void in divers of its provisions; not upon the narrow
ground that the constitution has expressly prohibited such acts, but upon the
more broad and liberal ground that the People never gave a power to Congress to
A direct prohibition would have weakened the argument against them,
because it would have indicated an apprehension, that such power might be
A power to regulate Commerce is abused, when employed to destroy it; and a
manifest and voluntary abuse of power sanctions the right of resistance, as
much as a direct and palpable usurpation. The sovereignty reserved to the
States, was reserved to protect the Citizens from acts of violence by the
United States, as well as for purposes of domestic regulation. We spurn the
idea that the free, sovereign and independent State of Massachusetts is reduced
to a mere municipal corporation, without power to protect its people, and to
defend them from oppression, from whatever quarter it comes. Whenever the
national compact is violated, and the citizens of this state are oppressed by
cruel and unauthorized laws, this legislature is bound to interpose1
its power, and wrest from the oppressor his victim.
This is the spirit of our Union, and thus has it been explained by the very
man, who now sets at defiance all the principles of his early political life.
The question, then, is not a question of power or right with this
legislature, but of TIME AND EXPEDIENCY. The committee have deemed it to be
their duty to stifle their feelings of indignation at the strides of despotism,
which are visible under the guise of liberty, and the forms of Law, that they
may dispassionately consider the various modes of relief, which have been
suggested by some, or all of the memorialists, and report to the legislature
the result of their deliberations. Three courses have been suggested by the
1. That the legislature should remonstrate to Congress against the general
course of its measures, and particularly against the embargo act.
2. That laws should be passed, tending directly to secure the Citizens of
this Commonwealth in their persons, and property, and rights, and providing
punishments for all such as should violate them.
3. That delegates should immediately be appointed by the Legislature to meet
Delegates from such other States as shall elect any, for the purpose of
devising proper measures to procure the united efforts of the commercial
States, to obtain such amendments or explanations of the Constitution, as will
secure them from future evils.
With respect to the first, the committee cannot recommend it.
It has been again, and again, resorted to, and with no other effect than to
increase the evils complained of; and to subject to unjust reproaches and
insinuations, a body, which ought never to be a suppliant to any power on
1 A transcript from the Virginia Resolutions of 1798. Already by
Act of Feb. 7, 1814, Massachusetts had prohibited the use of State jails for
United States prisoners committed other than by judicial authority. Hildreth,
With respect to the second, as far as it relates to acts of violence in the
seizure of persons and property on land, without the formalities required by
the constitution of this State, we believe that the provisions of our state and
national constitutions, as well as the great principles of the common law are
so plain, that no act of this Legislature can afford any additional security.
And as to the prohibition of our fisheries and coasting trade, the Committee
cannot, at this distressing juncture, recommend a remedy to be relied on so
inadequate as would be afforded by the enaction of penal laws.
On the subject of a convention, the committee observe, that they entertain
no doubt of the right of the Legislature to invite other states to a
convention, and to join it themselves, for the great purposes of consulting for
the general good, and of procuring amendments to the constitution, whenever
they find that the practical construction given to it by the rulers, for the
time being, is contrary to its true spirit and injurious to their immediate
constituents. We know of no surer or better way to prevent that hostility to
the Union, the result of oppression, which will eventually terminate in its
downfall, than for the Wise and Good, of those States, which deem themselves
oppressed, to assemble with delegated authority, and to propose, urge, and even
insist upon such explicit declarations of power, or restriction, as will
prevent the most hardy from any future attempts to oppress, under the color of
the constitution. This was the mode proposed by Mr. Madison in answer to
objections made, as to the tendency of the general Government, to usurp upon
that of the States. And though he at a former period led the Legislature of
Virginia into an opposition, without any justifiable cause; yet it may be
supposed that he and all others who understand the principles of our concurrent
Sovereignty, will acknowledge the fitness and propriety of their asserting
rights, which no people can ever relinquish.
But although the Committee are convinced of the right, and think the
Legislature ought to vindicate it, of acting in concert with other States, in
order to produce a powerful, and if possible an irresistable claim for such
alterations, as will tend to preserve the Union, and restore violated
privileges, yet they have considered that there are reasons which render it
inexpedient at the present moment to exercise this power. Some of these reasons
your Committee would suggest, that the memorialists may know that their
pressing appeals are not postponed from any insensibility to them on the part
of the Legislature. The Committee would here express their hope that the people
of this Commonwealth, injured and oppressed as they have been, will as far as
possible restrain their feelings of indignation, and patiently wait for the
effectual interposition of the State Government for their relief; and the
Committee doubt not that the real friends of peace will continue
conscientiously to refrain from affording any voluntary aid or encouragement of
this most disastrous war.
The Committee entertain no doubt that the sentiments and feelings expressed
in the numerous memorials and remonstrances, which have been committed to them,
are the genuine voice of a vast majority of the Citizens of this Commonwealth.
But the Representatives who are soon to be returned for the next General Court,
will come from the People, still more fully possessed of their views and wishes
as to the all-important subject of obtaining, by further compact engrafted into
the present constitution, a permanent security against future abuse of power;
and of seeking effectual redress for the grievances and oppressions now
endured. They will also assemble, better acquainted with the wishes and
disposition of other States, suffering alike with this, to act in co-operation
for these essential objects. In addition to this, some among our constituents
indulge a hope of success from the negociation recently entered into for the
professed purpose of restoring peace to our distracted and divided
The return of peace would undoubtedly relieve the people from many of the
burthens which they now suffer; but it is not to be forgotten, how the war was
produced, how it has been conducted, how long its baleful consequences will
continue, and how easily such evils may be again brought upon us, unless an
effectual security be provided. Without war, experience has shown us, our
commerce may be destroyed. Indeed there is now little hope that it will ever be
restored, unless the people of Massachusetts and the other commercial States
shall exert their united efforts in bringing back the constitution to its first
Under these impressions the Committee beg leave to conclude by recommending
the adoption of the following Resolutions. All which is respectfully submitted.
Resolved, That "the act laying an embargo on all Ships and
vessels in the Ports and harbors of the United States," passed by the
Congress of the United States on the 16th day of December, 1813, contains
provisions not warranted by the Constitution of the United States, and
violating the rights of the People of this Commonwealth.
Resolved, That the Inhabitants of the State of Massachusetts, have
enjoyed, from its earliest settlement, the right of navigating from Port to
Port within its limits and of fishing on its coasts; that the free exercise and
enjoyment of these Rights are essential to the comfort and subsistence of a
numerous class of its citizens; that the power of prohibiting to its Citizens
the exercise of these rights was never delegated to the general government, and
that all Laws passed by that Government, intended to have such an effect, are
therefore unconstitutional and void.
Resolved, That the people of this commonwealth, "have a right to
be secure from all unreasonable searches and seizures of their Persons, Houses,
Papers, and all their Possessions;" that all Laws rendering liable to
seizure the property of a Citizen at the discretion of an Individual, without
warrant from a Magistrate, issued on a complaint, supported on oath or
affirmation, under the pretence that such property is "apparently on its
way towards the territory of a foreign nation or the vicinity thereof,"
are arbitrary in their nature, tyrannical in their exercise, and subversive of
the first principles of civil liberty.
Resolved, That the People of this Commonwealth, "have a right to
be protected in the enjoyment of life, liberty, and property, according to
standing Laws;" and that all attempts to prohibit them in the enjoyment of
this right by agents acting under Executive Instructions only, and armed with
military force, are destructive of their freedom and altogether repugnant to
Resolved, That as the well grounded complaints of the People
constitute a continued claim upon the Government, until their grievances are
redressed, the several memorials and remonstrances referred to the Committee
aforesaid be delivered to His Excellency the Governor, with a request that he
or his successor in office would cause the same to be laid before the next
General Court at an early day in their first Session.
[From manuscript in Mass. Archives.1]
1 I am indebted to Miss L. House, Fellow in American History,
University of Pennsylvania, for verifying the above text.
35. Connecticut on the Conscription Bill.
October Session, 1814.
Owing to the exigencies of the war, the administration in the fall of 1814
proposed the adoption of a conscription scheme, which was characterized by the
opposition as grievously oppressive and unconstitutional. A bill, based upon
the plan drawn by the Secretary of War, was introduced in Congress, and while
still pending in the House of Representatives, the Legislature of Connecticut
passed the following threatening resolutions. The conscription bill failed, but
Congress adopted the Bill in regard to the Enlistment of Minors, December 10,
1814. (U. S. Stat. at Large, III, 146, 147.) In consequence of this act
the Connecticut Legislature at the special session in January, 1815, passed
An Act to secure the rights of Parents, Masters and Guardians, declaring
the aforesaid act of Congress "repugnant to the spirit of the constitution
of the United States, and an unauthorized interference with the laws and rights
of this State," and requiring judges to discharge on habeas corpus
all minors enlisted without the consent of their parents or guardians,
subjecting to fine and imprisonment any person concerned in such enlistment who
should remove any such minor out of the State. (Public Statute Law of
Connecticut, Bk. II, ch. IV, 189, 190.) A similar law was enacted by
Massachusetts, February 27, 1815. (Laws of Mass., 1812-15, 640, 641.)
References: The text is found in the Connecticut Courant, Hartford,
November 15, 1814; also in Niles, VII, Sup. 107, 108; Dwight, 336, 337.
For general account, see Adams, VIII, 265-280; Dwight, 309-337; Hildredth, VI,
529-534; 554; McMaster, IV, 240-246; V, 412.
And whereas the principles of the plan and bill aforesaid, are, in
the opinion of this assembly, not only intolerably burdensome and oppressive,
but utterly subversive of the rights and liberties of the people of this state,
and the freedom, sovereignty, and independence of the same, and inconsistent
with the principles of the constitution of the United States.
And whereas it will become the imperious duty of the legislature of
this state to exert themselves to ward off a blow so fatal to the liberties of
a free people —
Resolved by this Assembly, That in case the plan and bill aforesaid,
or any other bill on that subject, containing the principles aforesaid, shall
be adopted, and assume the form of an act of Congress, the Governor of this
state is hereby requested forthwith to convoke the General Assembly; and, to
avoid delay, he is hereby authorized and requested to issue his proclamation,
requiring the attendance of the members thereof at such time and place as he
may appoint, to the end that opportunity may be given to consider what measures
may be adopted to secure and preserve the rights and liberties of the people of
this state, and the freedom, sovereignty and independence of the same.
Massachusetts and the Call of the Hartford Convention.
During the summer of 1814 New England, which hitherto had been spared by the
British, was threatened with a general invasion, and the enemy actually
occupied a portion of the Maine coast. The Federal Government still left New
England to defend herself, and withheld supplies for the maintenance of the
militia. In this crisis, Governor Strong, of Massachusetts, assembled the
General Court in Special Session, October 5, 1814. That body acted promptly,
passing an act authorizing the raising of a military corps of ten thousand men
for the defence of the State (Laws of Mass., 1812-15, 575-578), and
adopting the Report and Resolutions of its Committee, recommending the
assembling of a Convention of Delegates of the New England States, thus acting
on the suggestion first proposed by the Joint Committee in their Report in the
preceding February. (Cf. Ante, No. 34.) The minority in both the Senate
and the House filed protests. Extracts from the Report and the Call for the
Convention to be held in Hartford, December 15, 1814, follow.
References: Sources. The texts are in Resolves of Mass., 1814,
567-571; also in Niles, VII, 149-153; the Circular Letter is in Dwight,
342, 343. For other documents including the Protests of the Minority of the
Senate and of the House, cf. Niles, VII, 113, 114, 148-155, 180, 181.
Report and Resolution of the General Assembly of Connecticut appointing seven
delegates to the Convention is in Dwight, 344-350; also in Niles, VII,
164, 165. In the Connecticut Historical Society there are two contemporary
prints of the same; the one, To the Honorable the General Assembly, now in
Session. Large folio, broadside. (New Haven: Hudson and Woodward, 1814),
attested in ink by Thomas Day, Secretary of State; the other, Report | Of
the Committee | To whom was referred His | Excellency's Speech, etc. |
Hudson & Woodward, Printers, | Church Street, New Haven.1 |
Octavo. pp. 8. The text of the report and resolutions of Rhode Island, which
follow, are also found in Niles, VII, 180, 181. The report adopted by
the Vermont Legislature, although Federalist, that it was inexpedient to accept
the invitation, is given in Assembly Journal of 1814, 76, 84, 129;
Records of Governor and Council, VI, 94, 463. Letter of Madison, on
conduct of New England States, Nov. 25, 1814, Works, II, 593. General
references: Adams, VIII, 222-228; Dwight, 337-351; Hildreth, VI, 531-535;
McMaster, IV, 246-248; Schouler, II, 424, 425; Von Holst, 258-262.
1 I am indebted to Mr. Albert C. Bates, Librarian, for these
36. Extracts from the Report of the Committee of the General Court of
Massachusetts, October 15, 1814.
[After reviewing the policy of the Federal Government toward the New England
States, the report concludes:]
It is, therefore, with great concern that your Committee are obliged to
declare their conviction that the Constitution of the United States, under the
administration of the persons in power, has failed to secure to this
Commonwealth, and as they believe, to the eastern section of this union, those
equal rights and benefits which were the great objects of its formation, and
which they cannot relinquish without ruin to themselves and posterity. These
grievances justify and require vigorous, persevering and peaceable exertions,
to unite those who realize the sufferings, and foresee the dangers of the
country, in some system of measures, to obtain relief, for which the ordinary
mode of procuring amendments to the constitution, affords no reasonable
expectation, in season to prevent the completion of its ruin. The people,
however, possess the means of certain redress; and when their safety, which is
the supreme law, is in question, these means should be promptly applied. The
framers of the constitution made provision to amend defects, which were known
to be incident to every human institution; and the provision itself was not
less liable to be found defective upon experiment, than other parts of the
instrument. When this deficiency becomes apparent, no reason can preclude the
right of the whole people, who were parties to it, to adopt another; and it is
not a presumptuous expectation, that a spirit of equity and justice,
enlightened by experience, would enable them to reconcile conflicting interests
and obviate the principal causes of those dissentions, which unfit government
for a state of peace and of war; and so to amend the constitution, as to give
vigor and duration to the union of the States. But as a proposition for such a
convention from a single State, would, probably, be unsuccessful, and our
dangers admit not of delay, it is recommended by the Committee, that in the
first instance, a conference should be invited between those States, the
affinity of whose interests is closest, and whose habits of intercourse, from
their local situation and other causes, are most frequent, to the end, that, by
a comparison of their sentiments and views, some mode of defence, suited to the
circumstances and exigencies of those States, and measures for accelerating the
return of public prosperity, may be devised; and also to enable the delegates
from those States, should they deem it expedient, to lay the foundation for a
radical reform in the national compact, by inviting to a further convention, a
deputation from all the States in the union. They therefore report the
following Resolves, which are submitted:
Resolved, That twelve persons be appointed, as Delegates from this
Commonwealth, to meet and confer with Delegates from the other States of New
England, or any of them, upon the subjects of their public grievances and
concerns, and upon the best means of preserving our resources and of defence
against the enemy, and to advise and suggest for adoption by those respective
States, such measures as they may deem expedient; and also to take measures, if
they shall think proper, for procuring a convention of Delegates from all the
United States, in order to revise the Constitution thereof, and more
effectually to secure the support and attachment of all the people, by placing
all upon the basis of fair representation.
[Resolves of Massachusetts, 1814, 567-569. Boston, 1814.]
37. Call of the Convention.
"Circular Letter to the Governors of the New England States on a
Convention to be holden at Hartford, which his Excellency the Governor is
requested to transmit.
17th October, 1814.
Your Excellency will herewith receive certain resolutions of the Legislature
of Massachusetts, which you are respectfully requested to take the earliest
occasion to lay before the Legislature of your State, together with this
letter, which is intended as an invitation to them to appoint Delegates, if
they shall deem it expedient, to meet such others as may be appointed by this
and other States at the time and place expressed in these resolutions.
The general objects of the proposed conference are first, to deliberate upon
the dangers to which the Eastern section of the Union is exposed by the course
of the war, and which there is too much reason to believe will thicken round
them in its progress, and to devise, if practicable, means of security and
defence, which may be consistent with the preservation of their resources from
total ruin and adapted to their local situation, mutual relations and habits,
and not repugnant to their obligations as members of the Union.
When convened for this object, which admits not of delay, it seems also
expedient to submit to their consideration, the enquiry, whether the interests
of these States demand that persevering endeavours be used by each of them to
procure such amendments to be affected in the national constitution as may
secure to them equal advantages; and whether, if in their judgment, this should
be deemed impracticable under the existing provisions for amending that
instrument, an experiment may be made without disadvantage to the nation, for
obtaining a Convention from all the States in the Union, or such of them as may
approve of the measure, with a view to obtain such amendment.
It cannot be necessary to anticipate objections to the measure which may
arise from jealousy or fear. This Legislature is content, for its justification
to repose upon the purity of its own motives, and upon the known attachment of
its constituents to the national union, and to the rights and independence of
Read and accepted in both Houses, and thereupon
Resolved, That his Excellency the Governor be requested to transmit
letters of the foregoing form, signed by the President of the Senate and
Speaker of the House of Representatives, to the several Governors of the States
of New Hampshire, Rhode Island, Connecticut, and Vermont, and also a copy of
the resolutions to which it refers, with a request that the same may be laid
before the Legislatures of their several States.
[Resolves of Massachusetts, 1814, 570, 571.]
1 Signed by the President of the Senate and Speaker of the House.
38. Report and Resolutions of the Legislature of Rhode Island.
November 5, 1814.
The Legislature and the whole people of this State already but too well know
how frequently and fruitlessly they have petitioned the Federal Government for
some portion of those means of defence for which we have paid so dearly, and to
which, by the Constitution, we are so fully entitled. Our most pressing
petitions and representations to the head and various departments of the
general government have often gone unanswered, sometimes have been answered by
unmeaning professions and promises never performed, but generally by telling us
to protect ourselves. The result is, that at this moment we have fewer means of
defence, less show of protection afforded by that government, than we had ever
at any period during a state of peace.
But while thus withdrawing from us all but the shadow of defence, and
totally disregarding their duty and our just rights under the Constitution;
that government is constantly demanding and taking from us those resources and
revenues which, by the Constitution, we granted expressly to enable them to
afford us that protection.
[Here follows an arraignment of the Federal Government for their neglect to
defend their coast, declaring that:] for a long period we were left without any
other evidence of the existence of a President or a government of the United
States, than what we derived from the burthens imposed and the calamities
brought upon us by them. And so perseveringly was this project against our
rights pursued, that the President of the United States himself, in one of his
public messages, openly, and with great chagrin, complained of the policy of
the enemy in leaving this section of the country unassailed and unravaged. [The
policy of the government in regard to the State militia is also severely
We are not alone in these calamities. Our sister States of the South have
been almost equally oppressed and abused. They are beginning to assert their
rights; and with us they will never suffer our common rights, under the
constitution, to be prostrated by a government we have ourselves
created.1 Why should we dwell longer upon the unwarrantable
treatment we receive, the unconstitutional attempts upon our constitutional
rights. Our condition is stripped of all doubt and uncertainty. Our chief
resources have been and still are to be taken as tribute; but for our defence
we are to look to ourselves. * * *
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
IN GENERAL ASSEMBLY, October Session, A. D. 1814.
Whereas, this General Assembly, having long witnessed, with regret and
anxiety, the defenceless, situation of this State, did, at their last session,
request his Excellency the Governor to communicate with the Executives of our
neighboring sister States upon the subject of our common defence by our mutual
co-operation:2 And whereas, those States, feeling equally with us
the common misfortunes, and the necessity of united exertions; have appointed,
and invited us to appoint, Delegates to meet and confer upon our calamitous
situation, and to devise and recommend wise and prudent measures for our common
Resolved, That this General Assembly will appoint four Delegates from
this State, to meet at Hartford, in the State of Connecticut, on the 15th day
of December next, and confer with such Delegates as are or shall be appointed
by other States upon the common dangers to which these States are exposed, upon
the best means of co-operating for our mutual defence against the enemy, and
upon the measures which it may be in the power of said States, consistently
with their obligations, to adopt, to restore and secure to the people thereof
their rights and privileges under the Constitution of the United States.
[Acts and Resolves of Rhode Island, October Session, 1814,
1 The Federalist Governor and House of Delegates of Maryland,
during the year 1813 had repeatedly called attention to the defenceless
condition of the State. Finally the House addressed a Memorial to Congress
against the war. (Amer. State Papers, Misc. II, 231-233. See also
Niles, IV, 219, 220; V, 260, 375-378; VII, 326-327.) It was communicated
to Congress, Feb. 2, 1814, but a motion to print, after a sharp debate, was
defeated in both Houses. Annals, 1813-14, 616-622, 1203-1228. For action
of the House of Delegates, Dec. 17, 1814, on conscription bill, see McMaster,
2Niles, VII, 181.
3 I am indebted to Mr. Clarence S. Brigham, Librarian of the
Rhode Island Historical Society, for verifying the text of these resolutions.
39. Resolutions Adopted by the Hartford Convention.
January 4, 1815
On December 15, 1814, twenty-six delegates from the States of Massachusetts,
Connecticut and Rhode Island, the counties of Cheshire and Grafton in the State
of New Hampshire, and the county of Windham in the State of Vermont, assembled
in convention at Hartford. They continued in secret session until January 5,
1815. The result of their deliberations was embodied in a Report and
Resolutions, which were immediately published. The Resolutions are given below.
The General Court of Massachusetts, Jan. 27, 1815, passed resolutions approving
of the proceedings of the Convention and for appointing Commissioners to
proceed to the seat of the National Government to enter into negotiations with
the Federal Authorities. (Resolves of Mass. (1812-1814), 590-592.) On
Feb. 10, 1815, the General Court also adopted resolutions recommending the same
amendments to the Federal Constitution as had been proposed by the Hartford
Convention. (Ibid., 615-617.) Similar action was also taken by
Connecticut, and the resolutions of both States were presented to Congress.
(Ames, Proposed Amendments, 46, 126, 180, 244, 264, 265, note, 269, 331,
332.) For reply of other States, see post, pp. 42-44. The news of peace
rendered the mission of the Commissioners untimely, and discredited the whole
movement. (Report of the Commissioners of Mass. to Washington, May 15,
1815, MS. in Mass. Archives, No. 5032/7.)
References: Text of Report and Resolutions in The Proceedings of a
Convention of Delegates, etc., convened at Hartford, December 15, 1814.
(Hartford, 1815.) A copy of this imprint, with the autograph signatures of the
members, is in the Massachusetts Archives. The text is also found as follows:
Pamphlet with same title, 3d ed. (Boston, 1815.) Appx to Resolves of
Mass., 1812-15; Dwight, 352-379; Niles, VII, 305-313. The Journal is
in Dwight, 383-398. The letter of Senator Pickering, and others, of March 3,
1815, in regard to laying the Amendments before Congress is in Mass. Archives,
No. 5032/9. General References: Adams, VIII, ch. XI; Adams, New England
Federalism, 81-90, 251-329; Hildreth, VI, 545-554; Lalor, I, 624-626;
Lodge, Cabot, chs. XI-XIII; McMaster, IV, 248-252; Niles,VII
(cf. Index); XXXIX, 434, 435; Quincy, Quincy, 356-358; Schouler,
II, 425-429; Von Holst, I, 263-272. For additional bibliography, cf.
Channing and Hart, Guide, § 173; MacDonald, Documents, 198.
That it be and hereby is recommended to the Legislatures of the several
States represented in this Convention, to adopt all such measures as may be
necessary effectually to protect the citizens of said States from the operation
and effects of all acts which have been or may be passed by the Congress of the
United States, which shall contain provisions, subjecting the militia or other
citizens to forcible drafts, conscriptions, or impressments, not authorized by
the Constitution of the United States.
Resolved, That it be and hereby is recommended to the said Legislatures, to
authorize an immediate and earnest application to be made to the Government of
the United States, requesting their consent to some arrangement, whereby the
said States may, separately or in concert, be empowered to assume upon
themselves the defence of their territory against the enemy; and a reasonable
portion of the taxes, collected within said States, may be paid into the
respective treasuries thereof, and appropriated to the payment of the balance
due said States, and to the future defence of the same. The amount so paid into
the said treasuries to be credited, and the disbursements made as aforesaid to
be charged to the United States.
Resolved, That it be, and it hereby is, recommended to the Legislatures of
the aforesaid States, to pass laws (where it has not already been done)
authorizing the Governours or Commanders in Chief of their militia to make
detachments from the same, or to form voluntary corps, as shall be most
convenient and conformable to their Constitutions, and to cause the same to be
well armed, equipped and disciplined, and held in readiness for service; and
upon the request of the Governour of either of the other States, to employ the
whole of such detachment or corps, as well as the regular forces of the State,
or such part thereof as may be required and can be spared consistently with the
safety of the State, in assisting the State, making such request to repel any
invasion thereof which shall be made or attempted by the publick enemy.
Resolved, That the following amendments of the Constitution of the United
States, be recommended to the States represented as aforesaid, to be proposed
by them for adoption by the State Legislatures, and in such cases as may be
deemed expedient, by a Convention chosen by the people of each State.
And it is further recommended, that the said States shall persevere in their
efforts to obtain such amendments, until the same shall be effected.
First. Representatives and direct taxes shall be apportioned among the
several States which may be included within the union, according to their
respective numbers of free persons, including those bound to serve for a term
of years, and excluding Indians not taxed, and all other persons.
Second. No new State shall be admitted into the union by Congress in virtue
of the power granted by the Constitution, without the concurrence of two thirds
of both Houses.
Third. Congress shall not have power to lay any embargo on the ships or
vessels of the citizens of the United States, in the ports or harbors thereof,
for more than sixty days.
Fourth. Congress shall not have power, without the concurrence of two thirds
of both Houses, to interdict the commercial intercourse between the United
States and any foreign nation or the dependencies thereof.
Fifth. Congress shall not make or declare war, or authorize acts of
hostility against any foreign nation, without the concurrence of two thirds of
both Houses, except such acts of hostility be in defence of the territories of
the United States, when actually invaded.
Sixth. No person who shall hereafter be naturalized, shall be eligible as a
member of the Senate or House of Representatives of the United States, nor
capable of holding any civil office under the authority of the United States.
Seventh. The same person shall not be elected President of the United States
a second time; nor shall the President be elected from the same State two terms
Resolved, That if the application of these States to the government of the
United States, recommended in a foregoing Resolution, should be unsuccessful,
and peace should not be concluded, and the defence of these States should be
neglected, as it has been since the commencement of the war, it will in the
opinion of this Convention be expedient for the Legislatures of the several
States to appoint Delegates to another Convention, to meet at Boston, in the
State of Massachusetts, on the third Thursday of June next, with such powers
and instructions as the exigency of a crisis so momentous may require.
Resolved, That the Hon. George Cabot, the