University of Virginia Library

TO JAMES ROBERTSON.

Dear Sir,—I have recd. your letter of the 8th.
but it was not until the 23d. inst.

The veil which was originally over the draft of the
resolutions offered in 1798 to the Virga. Assembly
having been long since removed, I may say, in answer
to your enquiries, that it was penned by me; and
that as it went from me, the 3d. Resolution contained
the word "alone," which was stricken out by the
House of Delegates.[132] Why the alteration was made,
I have no particular knowledge, not being a member
at the time. I always viewed it as an error. The
term was meant to confine the meaning of "parties to the constitutional compact," to the States in the
capacity in which they formed the compact, in exclusion
of the State Govts. which did not form it.
And the use of the term "States" throughout in the
plural number distinguished between the rights
belonging to them in their collective, from those belonging
to them in their individual capacities.

With respect to the terms following the term
"unconstitutional"—viz. "not law, but null void
and of no force or effect" which were stricken out of
the 7th. Resoln. my memory cannot positively decide
whether they were or were not in the original
draft, and no copy of it appears to have been retained.[133]

On the presumption that they were in the draft
as it went from me, I am confident that they must
have been regarded only as giving accumulated
emphasis to the declaration, that the alien & sedition
acts had in the opinion of the Assembly violated
the Constitution of the U.S. and not that the addition
of them could annul the acts or sanction a resistance
of them. The Resolution was expressly declaratory, and proceeding from the Legislature only which was
not even a party to the Constitution, could be
declaratory of opinion only.

It may not be out of place here to remark that
if the insertion of those terms in the draft could
have the effect of showing an inconsistency in its
author; the striking them out wd. be a protest
agst. the doctrine which has claimed the authority
of Virginia in its support.

If the 3d. Resolution be in any degree open to
misconstruction on this point, the language and
scope of the 7th ought to controul it; and if a more
explicit guard against misconstruction was not
provided, it is explained in this as in other cases
of omission, by the entire absence of apprehension
that it could be necessary. Who could, at that day,
have foreseen some of the comments on the Constitution
advanced at the present?

The task you have in hand is an interesting one,
the more so as there is certainly room for a more
precise & regular history of the Articles of Confederation
& of the Constitution of the U. S. than
has yet appeared. I am not acquainted with Pitkin's

work, and it was not within the scope of Marshall's
Life of Washington to introduce more of Constitutional
History than was involved in his main subject.
The Journals of the State Legislatures, with the
Journal & debates of the State Conventions, and the
Journal and other printed accounts of the proceedings
of the federal Convention of 1787, are of course
the primary sources of information. Some sketches
of what passed in that Convention have found their
way to the public, particularly those of Judge Yates
and of Mr. Luther Martin. But the Judge tho'
a highly respectable man, was a zealous partizan,
and has committed gross errors in his desultory notes.
He left the Convention also before it had reached
the stages of its deliberations in which the character
of the body and the views of individuals were sufficiently
developed. Mr. Martin who was also present
but a part of the time betrays, in his communication
to the Legislature of Maryland, feelings which
had a discolouring effect on his statements. As
it has become known that I was at much pains to
preserve an account of what passed in the Convention,
I ought perhaps to observe, that I have thought
it becoming in several views that a publication of it
should be at least of a posthumous date.

I know not that I could refer you to any other
appropriate sources of information wch. will not
have occurred to you, or not fall within your obvious
researches. The period which your plan embraces
abounds with materials in pamphlets & in newspaper
essays not published in that form. You would

doubtless find it worth while to turn your attention
to the Collections of the Historical Societies now in
print in some of the States. The library of Phila.
is probably rich in pertinent materials. Its catalogue
alone might point to such as are otherwise attainable.
Although I might with little risk leave it to your
own inference, I take the liberty of noting that this
hasty compliance with your request is not for the
public eye; adding only my sincere wishes for the
success of the undertaking which led to it, and
the offer of my friendly respects & salutations.