University of Virginia Library

CHAPTER VI.

In the progress of this work, we have kept steadily
in view the design of presenting Virginia
alone to the thoughts of the reader. Now that she
has become united with the General Government,
it will be more difficult to follow her fortunes as a
state with distinctness, but this very difficulty will
make the task more important. Intimately connected
as she was with her sisters, she yet retained
her identity, and continued in her new relations,

to act out the same principles that had been announced
by her statesmen early in the Revolution.
Whenever her course was coincident with that of
the Federal Government, the history, of the two
may be considered as so interwoven, that no attempt
should be made to separate them. But this
was not always the case. There were to be times
of conflict, verging even to dissolution. Therefore
our office in continuing the history of the state, will
be to tell, not merely of her internal interests and
changes, but of the seasons when she was obliged
to reassert her sovereignty, and remind the Congress
that their powers were limited. In these aspects,
she will still appear in bold relief.

The opening events, under which the new government
commenced its career, could not but be
interesting to Virginia. She saw, with pride, her
best and greatest son raised to the head of the
Union, by the vote of his country, and in the first
years of his administration, several Virginians of
eminent talents, were successively assigned to offices
of honour and responsibility. Neither could
she be indifferent to the change which stilled discord,
restored public credit, and raised America to
her proper dignity in the eyes of the world.

(1792.) Among the earliest acts of the Government,
was the admission of Kentucky as a state, to
the privileges of the Union. She was the daughter
of Virginia. We have already noted her birth and
infancy. As she budded into girlhood, her mother
took special delight in looking upon her charms,
and developing them to greatest advantage. Unlike

the jealous matrons of artificial society, Virginia
never sought to keep back her fair child for fear
she should eclipse her in beauty. Whether she
was too proudly conscious of her own attractions to
shrink from comparison, or too generous even to
think of competition, we do not know, but it is certain
that she introduced Kentucky to her friends of
the Union, while the daughter was yet very young.
In 1785, the Legislature passed an act declaring
on what terms, and in what mode, the "District"
might be erected into a state.[1] In 1788, another
act was passed on the subject, but it having been
found that its provisions were incompatible with
the real views of Virginia, and injurious to the district,
a final bill became law on the 18th December,
1789.[2] This gave to the free male inhabitants of
Kentucky, who were over twenty-one years of age,
a right to elect from their respective counties, members,
to meet in a convention at Danville, and decide
upon the terms offered by Virginia. They
were, in substance, that the boundaries between
the states should remain as before; that the new
state should take upon herself a due proportion of
the public debt, and the payment of sums expended
for her defence against the Indians; that private
rights and interest in lands should be secured;
that the navigation of the river Ohio should be free
to all the citizens of the Union, and that the authority
and jurisdiction of Virginia might be determined
for ever, at any time subsequent to the 1st
November, 1791, as to the Convention might appear
expedient. Under these arrangements, Kentucky
gradually assumed all the incidents of a
sovereign state, and in 1792, she was admitted to
the Federal Union.

In the same year we note, as a fact illustrating
the manners and spirit of the times, a petition to
the Assembly from sundry societies of Quakers
through the state. It seems that for many sessions
past, the House of Delegates had adopted the
praiseworthy practice of having a chaplain to conduct
morning prayers, and invoke Divine favours
in behalf of their proceedings. It is hard to conceive
a valid argument against this practice. It
infringed not religious liberty, for each member
voted for whom he pleased; and the duties of the
minister were too humble, too purely spiritual, to
gratify a worldly ambition. But the Quakers protested
against this rule, and urged its repeal;[3] at
the same time demanding full freedom in religion,
they asked that they might not be compelled to
take off their hats before men in authority! How
far these petitions immediately acted we do not
know, but it is certain that for nearly half a century,
the Legislature of Virginia have discarded a
chaplain, and that Quakers, within her borders,
may wear their hats when and where they please.

While the early years of the new government
were passing away, Virginia was often an actor in,
and always an attentive witness of, its most exciting
scenes. The germ of party spirit had been
planted in America a very short time after the

Revolution, but it did not develope itself in might
until the governing policy of the first administration
began to appear. Then the names of "Federalist"
and of "Republican," became familiar; the
first was the distinctive title of those who thought
most favourably of the General Government, and
who were willing so to construe its charter as to
extend rather than restrict its powers. Believing
that upon this government would depend the real
permanency and success of American interests,
they viewed it with sincere admiration, and supported
it with patriotic zeal. Whatever may have
been their errors, the Federalists of old embraced
in their ranks some of the purest and most intellectual
men the world has ever known. The other
title of "Republican," was applied to those who
looked with jealousy upon the Federal Government,
who confined its powers by the most rigid construction
of the Constitution, of which the words
would admit, and who sought to repress it by a
frequent recurrence to the "reserved rights" of the
state governments, and the people. This party
was generally predominant in Virginia. It was
led by men of splendid talents, of warm feelings,
popular in debate, and high in the confidence of
masses of the social system.

Had the spirit of party operated merely on the
questions springing from the politics of America,
it might not have produced the effect exhibited at
the close of the eighteenth century; but there were
foreign elements intermingling with the domestic
views of the parties, and adding intense bitterness

to their feuds. This subject has a bearing upon
the fortunes of Virginia so direct that it will be
proper to unfold it.

In the very year in which the United States
assumed a stable government, France commenced
her Revolution. Heated minds within her bosom
had watched eagerly the progress of liberty in the
New World. Centuries of pressure had prepared
her people for an outburst of feeling when first it
could come forth. A luxurious court, which had
fed its own pleasures on the property of its subjects;
taxes, accumulated until they could no
longer be borne; a vast ecclesiastical system living
in ease, and holding the richest possessions of the
land; and a government responsible only to itself
for its measures; these had been the continued
causes urging to rebellion. The final success of
America was an example too tempting to be resisted.
How much her teachings and her sympathy
affected France, history has long since conceded.
On the 14th of July, 1789, the Bastile
was torn down, its governor fell a victim to the
rage of the populace, and sovereign and nobles
were finally awakened to know the power of the
"third estate."

Could France have been content to stop when
it was in her power to obtain a limited government,
and every guarantee for rational freedom, she might
have secured her own welfare, and spared the world
the most horrible page of its history. But a spirit
of wild innovation had arisen,—the bonds of
society had been loosened by pernicious doctrines

of which Voltaire was the chief author. Men
learned to deny their duty to the Supreme, and by
necessary consequence, they forgot their duty to
one another. The stream of revolution, which,
at first, had been but slightly tinged, grew
darker in hue, until it was all blood. King and
queen, guards of the palace, prisoners of state, the
titled, the obscure, the innocent, the guilty, the
philosophic Girondist and the brutal Jacobin, bled
in succession to supply this stream. From a
despotic but brilliant monarchy, France passed
into a democracy of madmen; and from convulsions
which would have ended in death, she was
only relieved by the stern rule of the Man of
Destiny.

When her struggle for freedom commenced, there
were few in America who did not look on her with
solicitude. All wished that she should be free, and
many thought that for this purpose violence must
be used. Through the states, enthusiasm was
kindled in her favour; meetings were held; addresses
were delivered; toasts were drunk expressive
of popular opinion. We have yet on record a
series of sentiments uttered on the fourth anniversary
of the day when the Bastile was destroyed,
and one bore special reference to that event: "May
the Bastile of Despotism throughout the earth be
crumbled into dust, and the Phœnix of Freedom
grow out of its ashes."[4]
France was still regarded
as the ally of America. But as the appalling phenomena

of her Revolution succeeded one another,—
each rising in horror above its predecessor,—a great
change occurred in public feeling in the United
States. The prudent doubted; the moderate censured;
the virtuous recoiled. There was nothing
in her course that assimilated it to the steady adherence
to principle which had gained rational freedom
for the republics of the New World. None
were more firm in reproving her conduct, than the
men who had been first in achieving American
Independence. Washington, as chief magistrate
of his country, resisted all attempts to involve her
in French interests. Louis, the sovereign who had
aided America in the critical hour, had been put to
death, and with him fell many of the generous men
who had advised his policy. Washington saw in
the misshapen thing called a "Directory," no responsibility
to trust, and no virtue to respect. He
treated Genet, the French minister, with decision;
and, finding him persevering in efforts to tamper
with the people, and destroy the neutrality of the
United States, he demanded his recall.

Yet, even to the last, there were many in the
Union who sympathized with France, and thought
her entitled to full countenance from their country.
In Virginia, nearly all of the Republican party held
these views; they believed that the revolution of
the new republic was founded on a firm basis, and
though they blamed her excesses, they thought
them but the throes of a moment, which would
pass and leave her safe. There were not wanting
men of great mental strength in the state, who had

imbibed some of the religious, or rather irreligious
philosophy of France. Atheism indeed they rejected;
but simple Deism had charms for minds
that loved not the humbling doctrines of Christ.
These men would naturally see all the vices of the
new régime with lenient eyes, would defend her
course, and would denounce, as a British spirit,
every disposition to check her influence in America.

(1797.) Thus had a foreign element intermingled
with the politics of the Union, when on the 4th of
March of this year, John Adams of Massachusetts
was raised to the presidential chair. He was a
tried friend of liberty; he had been among the first
to speak for independence; he was an honest man;
in the language of his great political opponent, "A
man more perfectly honest never issued from the
hands of his Creator."[5] But his manner was not
gracious, his temper not compromising. He was a
Federalist of the straitest sect; a living embodiment
of the principles of his party, when urged to
their extreme results. In no point did he more
heartily concur in the policy of the preceding administration,
than in its views of French politics, and
when he became chief magistrate, he was ready to
go beyond all before him on this subject. He had
served his country in Europe, in several high
offices, and all that he had there seen and heard
confirmed his judgments against France. There
can be little doubt that he carried his opposition to

an unreasonable extent;[6] it caused him to see other
subjects of national interest through a deceptive
medium, and finally led him to assent to measures
which shook the Union to its centre.

In Virginia, the Republican party were ever
active, and many circumstances now concurred to
draw into its ranks the learning, the talent, and
much of the patriotism of the state. Some of the
earliest supporters of the Constitution saw with regret
that this sacred instrument was in danger of
being made subservient to purposes fatal to freedom.
Taking advantage of certain general expressions
and clauses in the eighth section of the first
article, Congress had exercised powers which, by
no sound exegesis, could be claimed, and the President
had approved. There was a virulence of
feeling entertained towards the chief magistrate of
the country, which was much to be deplored; but
he had, unhappily, given some occasion for it by
words used in his published letters, in which he
had expressed preference for aristocracy, and had
spoken of a "faction" in Virginia which ought to
be "ground into dust and ashes"[7] His leading
measures were regarded with alarm, and though
good in themselves, they were then considered as
part of a system destructive of the independence of
the states. He increased the "standing army,"
gave it compactness, and earnestly sought to organize
its officers and men; he expanded the policy

of Washington as to the navy; built sloops, corvettes,
frigates, and made strong this arm of national
power.

(1798.) When all the causes operating upon
the public mind in Virginia are weighed, we may
be prepared to understand the course she pursued
in the memorable events of '98 and '99. The first
measure she adopted is one around which a cloud
of mystery has been thrown that is not dispelled by
cotemporary records. But the ominous silence observed
at the time will, in itself, furnish evidence
tending to solve the mystery. On the 23d of January
the Legislature, after a preamble studiously
brief, enacted a law greatly extending the means
for state defence. Two arsenals were to be provided
in addition to that already existing at the Point
of Fork. An armory was to be speedily built at
Richmond, and vigorous means were to be used
for the manufacture of arms. The building was
itself to be large enough for storing in safety ten
thousand stand of muskets; and pistols, holsters,
and swords were to be prepared for troops of cavalry.[8] No delay occurred in carrying out these
provisions. The building arose, which has ever
since excited the interest of visiters to the metropolis
of the Old Dominion. Artificers were soon
at work, and the result of their labours has been
apparent.

Sixty thousand muskets have been committed to
the hands of the state militia, or else are retained in

condition to make them serviceable at short notice.[9]
Two hundred and twelve pieces of cannon are
ranged around the upper and lower platforms of
the armory yard, most of them are of small calibre,
but some are very heavy. With these, have been
placed six beautiful brass siege-pieces, and two
mortars, concerning which a singular obscurity
prevails in our records. The opinion best sustained
is that they were landed from a French ship
of war during the siege of Yorktown, and that they
were a gift from the sovereign of France to the
"unterrified commonwealth."[10]

Why this warlike preparation, these bright bayonets,
this formidable array of cannon? We will
not pretend to answer by referring to the printed
witnesses of the times; they are cautious, more
than cautious,—they are silent. But, in subsequent
years, gray-haired citizens have had the seal taken
from their lips, and have told us that surrounding
events had much to do with this war spirit. And
her own instructions soon afterwards delivered to
her senators and delegates in Congress, will show
how much the state apprehended from the standing
army, the growing navy, the gradual advances of
the General Government.[11] Had she been compelled

to fight for her sovereignty, Virginia would have
been prepared. But the Constitution and its guarantees
were stronger for good than she had supposed.
Happy indeed was the change which accomplished
her object by the ballot-box and not by
the sword!

Her fears of federal usurpation were not premature.
There was every thing in the aspect of
America, at this period, to provoke the President
and his friends into precipitate action. Foreigners,
chiefly French, in numbers, pervaded the country,
canvassing the course of government, promulging
ultra doctrines as to the social system, and urging
to extreme the "propagandism" which was the
great lever of the Directory. And the press, in its
daily issues, then exhibited a bitterness, a concentrated
rancour, to which nothing of subsequent
years can be compared. But these were evils
which, in time, would either work their own cure,
or be checked by the conservative powers of the
state governments. And whether they were checked
or not, they could never justify Congress and the
President in violating the charter of the Union.
To this point they were now approaching.

At the summer session of 1798, were enacted the
celebrated "Alien and Sedition Laws." The first
was entitled "An Act concerning Aliens," and was
approved on the 25th of June. It provided that it
should be lawful for the President of the United
States "to order all such aliens as he shall judge
dangerous to the peace and safety of the United
States, or shall have reasonable grounds to suspect

are concerned in any treasonable or secret machinations
against the government thereof, to depart
out of the territory of the United States, within
such time as shall be expressed in such order."
Under certain circumstances and conditions, the
President was authorized to grant a license enabling
an alien to remain; but if any alien, not having
such license, was found in the country after having
been ordered to depart, he was, on conviction, to
be imprisoned for a term not exceeding three years.
And the President was empowered, if in his opinion
the public safety required a speedy removal,
to cause any alien ordered to depart, to be arrested
and sent out of the country. Other clauses of the
same tendency completed the act, and it was to be
in force for two years from its passage.[12] The Sedition
Act was approved on the 14th of July. It first forbade
any combination or conspiracy to oppose or impede
the government of the United States, or to intimidate
its officers. But the principal clause was one providing
that if any person should write, print, utter,
or publish, or cause to be written, printed, uttered,
or published, any "false, scandalous, and malicious"
writing against the General Government or
Congress, or the President, with intent to defame
them, or to bring them into contempt or disrepute,
or to excite against them the hatred of the "good
people" of the United States, or to stir up sedition,
such person, on conviction in a United States
Court, should be punished by a fine not exceeding
two thousand dollars, and by imprisonment not exceeding
two years. On the trial, however, the defendant
might give in evidence as a defence, the
truth of the matter in his publication. The act was
to continue in force until the 3d of March, 1801.[13]

Hardly had these laws gone into force, ere they
roused high excitement throughout America
While many approved, and believed them required
by the events of the times, a great body of the
people considered them as involving a breach of
the Constitution, and as opening the way to despotism.
In Virginia, the Republicans were aghast!
They had, indeed, listened for sounds of deep-toned
federalism from the government, but they were not
prepared for such trumpet notes as these. With
one accord they rallied for battle, and the real
emergency of the case drew into their ranks some
great men who had been strenuous advocates for
the adoption of the Federal Sovereignty. The
same scenes of popular debate occurred which had
preceded the meeting of the Convention in 1788,
and it was easily foreseen that at the next session
of the Legislature, the storm would open.

These expectations were not groundless. A
short time after the Assembly met, John Taylor, of
Caroline, introduced nine resolutions,[14] having reference
to the course of the Federal Government,
and particularly to the passage of the Alien and

Sedition Laws. These well-known resolutions
were from the pen of James Madison, but they
expressed Mr. Taylor's sentiments, and were most
ably supported by him in the debate that ensued.
On the 13th of December, the House of Delegates
resolved itself into a committee of the whole on
the state of the Commonwealth, and Mr. Brackenridge
took the chair. Then John Taylor opened
his subject; he believed that liberty was in danger,
and that the occasion was "an awful one." He
considered the obnoxious laws, first as to their constitutionality,
secondly, as to their correspondence
with natural rights. That they were not constitutional
he contended, because power was nowhere
delegated to Congress to make such laws as to
alien friends; because aliens had rights under the
common law which these acts took away; because
they were deprived of trial by jury; because the
"three powers" of government were by these acts
united in one hand, the President being authorized
to make the rule, to judge the accused, and to execute
the sentence; and because the Sedition Law
took away the freedom of the press, which Congress
had not only no power, but was expressly
prohibited to do. In proving that the laws were
against natural right, Mr. Taylor had a wide field,
in which he exercised himself at pleasure.[15]

In favour of the laws, George Keith Taylor, of
Prince George, was most prominent. He was
a member of the Federal party, and much attached
to John Marshall, whose sister he married. He

was a man of high character, acute in argument,
and powerful in declamation. Virginia owes to
him her penitentiary system, and his efforts to
ameliorate her criminal code made him a public
benefactor. In the first part of the debate he confined
himself to the defence of the Alien Law, urging
that the admission of aliens into a country was
matter of favour, and not of right; that the country
must protect herself against dangers arising from
them; that Congress had power under the Constitution
to insure domestic tranquillity; to define
and punish offences against the laws of nations;
to protect against invasion, and to pass all laws
"necessary and proper" for these purposes; that
this law was required by the state of the country;
and he concluded his first speech by depicting in
eloquent terms the horrors of the French dominion,
and the hazard that they might be extended to
America.[16] In his next effort he defended the Sedition
Law, on the ground that the common law
punished the licentiousness of the press, but did
not stop its issues by a "censorship;" that this
was really what was meant by the freedom of the
press, and that Congress had done nothing more
than this in their late action.[17]

General Henry Lee aided Mr. Taylor in defending
the course of the Federal Government. He
insisted that the Constitution was a compact, not
of the states, but of the people; that therefore the
proposed resolutions were "radically erroneous;"
that the Alien Law was intended to prevent injury,

not to punish offenders; that Congress had this
power; that the Sedition Law was sanctioned by
high authority, for in 1776, the General Assembly
of Virginia had itself passed a similar enactment,
punishing any one who by word, deed, or publication,
should maintain and defend the authority of
the King and Parliament; and that no man in his
senses could consider the "freedom of speech" as
abridged, by the punishment of false, scandalous,
and malicious libels.[18]

The Laws were farther upheld with ability and
research, by Mr. Magill, Mr. Cowan, and Mr.
Cureton. Edmund Brooke, of Prince William,
opposed the resolutions, because they interfered
with the legitimate powers of the General Government.
He said the people had two organs, the
Federal Government and the State Legislature;
and that the first was certainly to be preferred, because
its representation was purest. He declared
that if his constituents should instruct him to vote
for resolutions "having so alarming and dangerous
a tendency, he would go in mourning for them; he
would bid adieu to legislation, and seek an asylum
in some other region of the globe, among a race of
men who had more respect for peace and order, and
who set a higher value upon the blessings of good
government!"[19]

All who supported the "Laws" opposed the
"Resolutions;" and on the other hand, all favourable
to the latter, made war upon the first. The

issues involved in the two, were so complete, and
so sharply defined, that neutrality was impossible.

To aid John Taylor, of Caroline, many brilliant
debaters came forward. Mr. Mercer and Mr. Daniel
argued against the Laws, urging that though the
admission of aliens might be matter of favour,
yet after they were admitted, they acquired rights
which these laws violated; that if there was any
power to send them out of the country, it was in
the state Legislatures; that the sacred trial by jury
must be given to them; that Congress had no more
power over the freedom of speech than of conscience:
that is, had no right to touch either;[20] that
to punish opinions, as to public men and measures,
was the very worst form of violating the freedom
of the press, and that this was done by the Sedition
Law.[21] Wilson Carey Nicholas spoke but little,
yet always with effect. In answer to General Lee's
argument, that the Alien Law was preventive only,
he insisted that it was punitive. For could there
be a more severe punishment than to banish a man
from the country; to order him to depart; to arrest
him violently if he refused, and to tear him
from ties which he might have formed in the home
of his adoption?[22]

William Pope, from Prince William, was a singular
character. Although possessed of the soundest
practical sense, he had a vein of humour in his composition,
which was continually flowing out in keen

repartee and ludicrous remarks. He replied to
George Keith Taylor's views upon the danger of
French influence, and in ridiculous style, rang the
changes on Volney and Talleyrand, Genet, Porcupine,
and Goodloe Harper. He said, "the gentleman
from Prince George has introduced a damsel,
and that is the damsel of liberty. When he had
done so, I confess I was seized with an ecstacy;
but when, at the same time, that gentleman would
not permit her to remain within these walls, I acknowledge
my feelings were very much wounded.
For I am fond of all damsels, but particularly so
of the damsel of liberty." He was willing to modify
the resolutions, provided it was still clearly
declared that the Laws were unconstitutional.[23]

In this debate, James Barbour, of Orange, made
his first appearance in the arena of public life. He
was but twenty-two years of age. His mind was
capacious, and stored with liberal learning. He
rose, in the committee, on the 17th December, and
spoke several hours amid deep interest from all
who heard. He was full of thought, and poured it
forth without a moment's hesitation, in words sonorous
and expressive. From time to time, his enthusiasm
betrayed him into forms of language,
which would not bear the test of a refined criticism,
as when he said, "the thirteen United States,
then the Colonies of America, after having been
lacerated to the midriff by the vulture fangs of British
persecution, threw off their colonial subjugation."[24] And occasionally a more unhappy error

was shown, in expressions proving that he had
tasted, with high relish, the infidel philosophy of
France: "As to Mr. Volney, the cause of truth and
virtue required he should speak more at large. He
had the pleasure of seeing that meritorious character
whilst in America, but he knew him better
by history than from personal acquaintance. He
from maturity had been influenced by the benevolent
desire of ameliorating the condition of mankind,
by illuminating the mind and dispelling superstition.
It was for this sublime purpose we saw
him traversing Asia, and sitting in meditative
silence amidst the ruins of Palmyra, drawing wisdom
from experience, and developing the causes
which contribute to the dissolution of the elements
of society, and the overthrow of empires;" and (the
orator might have added) thus preparing to hurl
"The Ruins" at Christianity. Mr. Barbour attacked
John Adams and his government with vigour, and
argued against the "laws" in a strain of mingled
reasoning and declamation, which strongly moved
his hearers.[25] No speech, during the debate, produced
a more manifest effect.

Near the close of the discussion, William B.
Giles spoke against the obnoxious laws. He too
was severe upon the government; commented upon
the President's letter to the people of Bath, in
which he had spoken of the faction in Virginia
which ought to be crushed; and opposed his leading
measures.[26] It is to be feared, that at this time,
scepticism in religion, and admiration of all that

was French, were closely united with the character
of leader in the Republican party of Virginia.
There were indeed bright exceptions, and to these
the state is chiefly indebted for the triumph of
order and peace within her bosom.

Before the resolutions were reported by the committee,
two amendments were adopted. The third
resolution said the powers of the Federal Government
resulted from the compact "to which the
states alone are parties." On motion of Mr. Giles,
the word "alone" was stricken out. The accuracy
of this amendment is to be determined by the definition
we apply to the word "state." If, as we
have preferred to use it in this work, it includes
both the people and the government within certain
geographical bounds, then the amendment was
hardly necessary; but if "state" means "state government"
alone, then the amendment was proper.
The other change was in the seventh resolution;
it declared that the Alien and Sedition Laws, "the
acts aforesaid, are unconstitutional, and not law, but
utterly null, void, and of no force or effect." On
motion of John Taylor himself, the words in
italics were stricken out.[27] Then the resolutions as
amended were reported to the House, and after
several abortive efforts to vary them, on Friday the
21st of December, they were adopted by a vote of
one hundred in the affirmative, and sixty-three in
the negative. On the succeeding Monday, the
Senate concurred by a vote of fourteen to three.[28]

A more searching ordeal has seldom been applied

to any work of the human mind than to the "Resolutions
of '98-'99," passed by the Virginia Assembly;
and it may be added, few compositions have
stood the test so well. They were penned by
James Madison, and exhibit in perfection the peculiarities
of his style. The first expresses the resolve
of the Assembly to maintain and defend the
Constitution of the United States, and of the State,
against all aggression; the second declares their
warm attachment to the Union, and hence their
duty to watch over and oppose any infraction of its
principles; the third declares that the powers of
the Federal Government result from the compact
to which the states are parties, and are limited by
the plain sense and intention of the instrument constituting
that compact, and to that extent only, are
valid, and that in case of a "deliberate, palpable, and
dangerous," exercise of other powers, the states
have the right, and are bound to interpose; the
fourth expresses the regret of the Assembly that
the Federal Government had shown a willingness
to enlarge its powers by forced constructions, and
by so interpreting general clauses, as to destroy
the meaning and effect of the particular enumeration,
the obvious tendency of which course was to
consolidation, and at last to monarchy; the fifth
particularly assails the "Alien and Sedition Laws,"
of which the former involved a power not delegated,
and also blended legislative and judicial
functions with executive, and the latter involved a
power not only not delegated, but expressly forbidden,
and was also the more alarming, because it
was "levelled against the right of freely examining
public characters and measures, and of free communication
among the people thereon;" the sixth
referred to the terms in which Virginia had ratified
the Constitution, to her care in guarding liberty of
conscience, and of the press, and to her efforts in
gaining an amendment for the purpose, and said it
would "mark a reproachful inconsistency and criminal
degeneracy" if she were now indifferent; the
seventh made a solemn appeal to their brethren of
the other states, "in confidence that they will concur
with this Commonwealth in declaring, as it
does hereby declare, that the acts aforesaid are unconstitutional,
and that the necessary and proper
measures will be taken by each, for co-operating
with this state, in maintaining unimpaired the authorities,
rights, and liberties reserved to the states
respectively, or to the people;" the eighth and
ninth provided simply for transmitting a copy of
these resolutions to the Legislature of each of the
other states, and to the Virginia senators and
representatives in Congress.[29]

Kentucky had preceded her mother by adopting,
during the month of November, resolutions penned
by Thomas Jefferson, which went beyond those
afterwards approved by Virginia. For one of Mr.
Jefferson's protests declared that the Sedition Act,
"which does abridge the freedom of the press, is not
law, but is altogether void and of no effect."[30] And in

this form it was adopted by Kentucky. But, besides
the "Old Dominion" and her daughter, no
other state spoke openly against the Federal Government.
And there were many citizens of America,
unblemished in character and high in public
confidence, who regarded the "resolutions" with
unmingled regret.

(1799.) George Washington had retired to
Mount Vernon, to enjoy the repose to which long
years of faithful service had entitled him. Yet he
could not view unmoved the crisis of his country.
He believed he saw in the Republican party of
Virginia, materials which threatened to rend asunder
the bonds of the Union. And there was another
patriot then in retirement who looked with
equal fear upon the progress of French influence
in America. Patrick Henry had opposed the adoption
of the Constitution, but after it was adopted,
he was its steady friend. He thought that most of
the individuals composing the contending factions
might be sincere, but that some leaders meditated
a change in the government.[31] He recoiled from
contact with France. "Her conduct has made it
the interest of the great family of mankind to wish
the downfall of her present government." He was
alarmed lest she should destroy the pillars of national
welfare, "virtue, morality, and religion;"
"this is the armour, and this alone, that renders us
invincible; these are the tactics we should study; if
we lose these, we are fallen indeed." He wished

to see John Marshall elected to Congress from Virginia,
believing that "he felt and acted as a republican,
as an American."[32]

(January 15.) It was at this juncture that Washington
addressed to Mr. Henry a confidential letter,
urging him to come forward as a candidate for the
General Assembly. He reminds him of the "endeavours
of a certain party among us to disquiet
the public mind with unfounded alarms, to arraign
every act of the administration, to set the people at
variance with the government, and to embarrass
all its measures." He deeply regrets that in this
course the State of Virginia had taken the lead, for
her Legislature had acted, and the chief leaders of
the opposition dwelt within her bosom. He expresses
his conviction that the great mass of the
people of the state were well affected towards the
government, and believes that one reason why this
did not appear, was that "the most respectable and
best qualified characters among us, will not come
forward." He speaks of a party that hung "upon
the wheels of government as a dead weight, opposing
every measure that is calculated for defence
and self-preservation," and "abetting the nefarious
views of another nation upon our rights," and
makes a serious appeal to Mr. Henry to throw his
weight into the scale of the national government,
by acting in the Assembly of Virginia.[33]

The effect of this appeal and of his own views of
duty upon Patrick Henry is well known. He appeared
before the people of Charlotte as a candidate

for their suffrages. He gained the hearts of all by
the "setting splendours" of a sun of eloquence
which in its zenith, had burned with intolerable
glory. He was elected "by his usual commanding
majority," and prepared at the next session of the
Legislature, to defend the Alien and Sedition Laws.
But Providence did not design that his generous
heart should be torn by a contest in which his
powers would not have made good his cause, and
his efforts would only have added bitterness to the
opposition. He died on the 6th day of June.[34]
Simple in manner, pure in morals, dignified in
public, affable in private, the great orator of the
world, the friend of liberty, the humble Christian,
passed away from strife to a land "where the
wicked cease from troubling, and the weary are at
rest."

And even a greater than he was destined to fall
during the same year. At half past eleven o'clock,
on the night of Saturday, the 14th of December,
George Washington breathed his last. When
this event became known, for a time the hearts of
all men were still,—passion grew calm, prejudice
confessed her guilt, party spirit seemed extinguished.
All felt that the world had lost her best inhabitant.
A despotic sovereign, and a historian in
love with privileged order, have alike rejoiced to do
honour to the memory of the Liberator of the
human race.[35]

But the progress of other events soon recalled the

minds of men from mourning to conflict. When
the Resolutions of the Virginia Assembly were
made known to the other states, they excited varied
action. Some may have approved them, but
none took open measures to co-operate. Some decidedly
disapproved, and taking up the matter seriously,
sent their views in solemn form to the intractable
Commonwealth. Massachusetts adopted a
dignified remonstrance, arguing that if the Constitution
was violated, the remedy was in the Supreme
Court, or in amendments; that the states were not
judges in the matter; that the Alien and Sedition
Laws were both constitutional and expedient, and
that therefore she must oppose Virginia.[36] New
Hampshire, Vermont, Connecticut, and Rhode
Island and Providence Plantations, all adopted the
same general course, with varieties of manner and
skill; the Senate of New York, in a preamble and
two resolutions, rebuked Virginia and Kentucky,
and little Delaware declared that the conduct of
her eldest sister was "a very unjustifiable interference
with the General Government and constituted
authorities of the United States, and of dangerous
tendency, and therefore not a fit subject for
the further consideration of" the said little Delaware.[37] During the legislative session of Virginia
for 1799-1800, these several remonstrances were
read, and were referred to a committee, together with
the resolutions which had called them forth.[38]

(1800.) This gave rise to the celebrated "Report"

of Mr. Madison. It was prepared, offered,
amended in committee, and finally presented to the
House. Here, on the 7th of January, it was approved
by a vote of one hundred in the affirmative,
to sixty in the negative.[39] This paper has ever
since been regarded with marked reverence by the
people of Virginia. It is clear and searching: its
eloquence (for it has eloquence) is not that of feeling,
but of reason; it shows a power of analysis
which has seldom been equalled: it takes up the
Resolutions of '98 one by one; it puts each section,
each clause, even each word, into the crucible, and
tries it with fire. And in doing this, it reviews the
powers of the Federal Government with the mind
of a master. Taken in union with subsequent commentaries
and restrictions, which Mr. Madison himself
applied to it, this Report may still be regarded
as a repository of safe principles; a faithful guide
for the citizen and the constitutional lawyer.

Instead of giving an extended review of a work
which ought to be in the hands of every American,
it will be proper that an attempt shall here be made
to extract from this Report, and the commentaries
that have followed it, the rules that may be applicable
to Virginia and to the United States, in the
contingencies of their being. These will not be
mere "abstractions," for if the opinions of men concerning
a written instrument, have been so controlling
as to stop the course of law on the one side,
and to send armed ships and soldiers to enforce it
on the other, these opinions have a practical weight

that may justify every candid attempt to guide
them.

First, then, as to the powers of Congress. These
are expressed in a particular enumeration, and in
certain general clauses. In one or the other of
these, every power must be found, and if it be
found in neither, it does not exist. The general
clauses are: "The Congress shall have power to
lay and collect taxes, duties, imposts, and excises,
to pay the debts, and provide for the common defence
and general welfare of the United States,"[40]
and "to make all laws which shall be necessary
and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution
in the Government of the United States,
or any department or officer thereof."[41] By some
it had been contended, that the first of these clauses
gave Congress indefinite powers of legislation;
whatever they might regard as for the common defence
and general welfare, that might they do. By
others, a meaning somewhat more restricted was
approved; in whatever subject an appropriation
of money was required, in that subject Congress
had indefinite power of legislation for the common
defence and general welfare. But Mr. Madison
showed that each of these modes of construction
was false; that the clause had been copied from a
similar one in the old "Articles of Confederation,"
and must be construed as that had been; and that
the expressions "common defence and general welfare,"
were to be limited and explained by the particular

enumeration that followed. For if not, why
was that particular enumeration made at all? and
how was the Government limited at all in its
powers? This reasoning seems too cogent to be
resisted. To tell what measures for the common
defence and general welfare they may adopt, and
to what they may appropriate money, Congress
must look to the "enumerated powers."

As to the other general clause, it had been greatly
feared in the Virginia debate on the Constitution,
and it had been much handled in the attempts to
justify the Sedition Law. But a proper caution
taught that it was not intended to increase the
number of the positive powers of Congress; it was
only intended to furnish "all the incidental and instrumental
powers" required for carrying into effect
the express powers. When a question should arise,
have Congress a certain power, it was to be answered
by inquiring: is the power expressly given?
and if not, then is it "properly an incident to an
express power, and necessary to its exercise?"[42] If
it be, Congress may exercise it; if it be not, Congress
should not claim it.

But while these rules of limited construction
seem safe and reasonable, they are not to be urged
to excess; the cords of the Constitution must not
be drawn so tightly as to strangle the government.
"The letter killeth" in politics as well as in religion.[43] "Qui hæret in literâ hæret in cortice,"
is a maxim as applicable to constitutional as to
statute law. In this subject as in others, there is a

medium,—a golden mean,—between the extremes
of a rigour which would compress the Constitution
to its dead letter, and deprive it of health, and the
licentiousness of interpretation, which would find
all powers in its general clauses. This golden
mean may not be stationary, but where it shall be
found may be safely decided by caution, patriotism,
statesmanship.[44] Language is imperfect; something
must be confided to the discretion of lawmakers
whom a free people would choose; and it is
believed that against abuses of this confidence, the
Constitution of the United States has as many
safeguards as a human system can erect. Even
the word "necessary" itself has a plastic meaning,
that will expand from the "physical necessity,"
made absolute by the laws of matter, to the "moral
necessity" controlled by the varied passions, appetites
and motives, which go to determine the human
will. And thus the powers of Congress have,
without violence, been held to include subjects not
within the letter of the charter. Mr. Madison
himself approved the view which extended them
to a bank.[45] Subsequently, a great mind, that was
ever watchful for state rights, has found power to
authorize Congress to improve the navigation of
the Mississippi River, and another lover of strict
construction has drawn out of the clause making
the President commander-in-chief of the army of
the United States, power to enable that high functionary
to establish provisional governments in a
conquered territory. Whether or not these two
last views be approved in all their length and
breadth, it will remain certain, that men who have
loved their country, and loved liberty, and loved
the Union, and loved the states, have held that
Congress have power, under the Constitution, to
charter a bank for national purposes, to improve
rivers, roads, and harbours, for the good of commerce
between the several states, and so to adjust
customs on imports, as to foster domestic industry.

Next, as to real and palpable violations of the
Constitution by Congress, what is the remedy?
Congress may go beyond their powers, may infringe
the charter which gives them being, and
may do this so evidently, that doubt would be unreasonable.
But there are remedies; first, the
federal judiciary will review the laws, and if they
be unconstitutional, will pronounce them void.
This is the office of the judiciary under the state
governments, and there are higher guarantees for a
pure administration of fundamental law under the
general, than under the state governments. The
judges are selected with more care, and are less
liable to local influences. Secondly, free elections
will remedy the evil; the delinquent Congress will
be displaced; better men will be substituted; the
obnoxious laws will be repealed. Thirdly, the
states may secure amendments; two-thirds may
propose, and three-fourths consummate an amendment
which would cut up spurious powers by the
roots. And beyond these three constitutional remedies,

it is not reasonable to suppose that any
illegal action of the Federal Government can generally
extend.

But there may be mischief beyond them all. It
may happen under the influence of polluting
causes, not lightly to be anticipated, that Congress
shall exercise unconstitutional powers oppressive to
a state, and at the same time the federal judiciary
shall be so corrupted that they will not declare
these powers void, and at the same time the ballot-box
shall be so prostituted that it will not displace
the authors of these powers, and at the same time
a majority of the states shall be so degraded by
self-interest or fanaticism, that they will not provide
amendments to destroy these powers: is there
then any remedy for the suffering state? There
is, but it is not under the Constitution. It does
not consist in declaring the law null and void
within her limits, and in refusing to permit it to be
enforced until three fourths of the states shall pronounce
in its favour, while all the time the nullifying
state shall remain in the Union, claiming its
protection, sharing its benefits, and sending representatives
to its government.[46] In the Constitution
there is absolutely nothing from which, either by
expression or implication, such power could be
derived, and its exercise would run counter to the
principles on which government is founded. It
would enable one state "to give the law and even the
Constitution" to nineteen states;[47] for the one state,

while yet enjoying the benefits of the Union, would
be exempt from an act of Congress to which the
others would be subjected; and the very necessity
for nullifying, presupposes that nineteen states
would not consent to the remedy by amendment.
Therefore, the nineteen must either submit their
judgments to the decision of the one, or else must
allow her to enjoy an exemption from which they
are themselves wholly debarred. Virginia has
never held a doctrine so inconsistent with the
principles of government. In 1798, she pretended
not to nullify. She struck out of her seventh resolution
words which would have had that tendency.
She expressed only her opinion, and invited
her sister states to join with her in adopting
necessary and proper measures for "maintaining
unimpaired the authorities, rights, and liberties
reserved to the states respectively, or to the
people."[48]

The remedy for the aggravated mischief of
which we have spoken, is found in the sacred right
of revolution. It is not under but above the
charter of government. When any people shall
be able no longer to bear the tyranny of their
rulers, they have a right given by the law of
nature, to overthrow the government, and re-establish
it on a basis that shall secure their welfare.
And the same doctrine will apply to a state
under the federal system of America. If the
Constitution be so long and so deliberately violated

that all ordinary remedies are found to be ineffective,
then the state will be released from her fealty
to the government. She will have the revolutionary
right to throw off all remaining shackles,
and, rejecting alike the privileges and the claims
of the Union, to arrest its laws within her territory,
and declare herself perfectly independent. If the
other states shall assent, and shall permit her
quietly to withdraw, then a peaceful revolution will
have been effected; but if they shall attempt to
force her to submit to the federal dominion, she
will have no alternative except an appeal to arms,
and to the God of battles.

But while this final resort is left to every state,
the highest reason will suggest that its exercise is
not even to be thought of, except in the last necessity.
Nothing has ever yet occurred in America
that would approach to its justification; and as the
patriot watches the workings of the federal system
in the light of the nineteenth century, he finds
growing evidences that its remedies are more potent
than its abuses, and that its most dangerous
trials have been borne. During the past two hundred
and ten years, the examples of England, of
France, and of America, have, to some extent, furnished
rules for construing the doctrine of revolution.
The violations of the federal charter which
would justify a state in armed resistance, must be
not merely "deliberate, palpable, and dangerous,"
but long-continued and tyrannical. They must
attain a point at which the evils of submission
would be worse than the horrors of civil war.

When this point shall be attained, the principles
of the charter of American freedom[49] will apply,
and resistance will become duty. It is believed
that there is but one subject connected with the
interests of the United States, which, by any
proximate possibility, can lead to such result.

From this attempt to explain the principles by
which, we believe, Virginia is guided in her contact
with the Federal Government, we turn again
to her history, and find, within the compass of a
single year, beautiful illustrations of their soundness.
A law which she then believed to be, and
which a vast majority of American statesmen have
since believed to have been, unconstitutional, was
actually to be enforced on her soil; an effort was to
be made to interpose the remedy of the federal judiciary,
and it was to fail; Virginia was to submit,
and then by the operation of the ballot-box, the
law, its authors and its progeny were to be swept
from power.

At this time there lived in Petersburg, one
James Thompson Callender, whose name would
merit no notice in history, had he not been the
occasion of drawing forth one of her most instructive
lessons. He seems to have been a man in
whose breast vindictive passion raged without
control. He was not a native of America, but had
for some time resided in Virginia, where his
warmth of party feeling, and real talent, had procured
for him employment in various capacities.
That he was degraded in character and in public

esteem, may be inferred from the fact that he was
once apprehended under the Vagrant Law.[50] But
he was capable of expressing bitter thought in
bitter words, and this made him a fit actor for the
part he was to play in the contest between the two
factions.

He wrote a pamphlet, which he entitled "The
Prospect before Us," and caused it to be published
in Richmond, on the 1st of February. Had he
carefully studied to violate the letter and the spirit
of the Sedition Law in as many points as possible,
he could hardly have effected his object more completely
than by this pamphlet. It was an attack
upon the administration, coarse, virulent, profligate.
The author rioted in abuse; and not content with
assailing Mr. Adams, he sought to desecrate the
tomb which had but just closed over the remains
of Washington. That we may form a correct idea
of this libel, it will be necessary to give extracts
from it, although it would be more grateful to let
it rest for ever in the oblivion of infamy to which
it has been consigned.

He says, "the reign of Mr. Adams has hitherto
been one continued tempest of malignant passions.
As President, he has never opened his lips or lifted
his pen, without threatening and scolding." "The
grand object of his administration has been to exasperate
the rage of contending parties, to calumniate
and destroy every man who differs from his
opinions." "Mr. Adams has laboured, and with
melancholy success, to break up the bonds of social

affection, and under the ruins of confidence and
friendship to extinguish the only beam of happiness
that glimmers through the dark and despicable
farce of life." He speaks of the "presidential system,
that is, a French war, an American navy, a
large standing army, an additional load of taxes,
and all the other symptoms and consequences of
debt and despotism;" "the same system of persecution
has been extended all over the continent.
Every person holding an office must either quit it, or
think and vote exactly with Mr. Adams." "Adams
and Washington have since been shaping a series
of these paper-jobbers into judges and ambassadors.
As their whole courage lies in want of shame, these
poltroons, without risking a manly and intelligible
defence of their own measures, raise an affected
yelp against the corruption of the French Directory,
as if any corruption could be more venal,
more notorious, more execrated than their own."[51]
He attributes to Mr. Adams measures used "for
the sake of yoking us into an alliance with the
British tyrant." "While such numbers of the
effective agents of the Revolution languish in obscurity
or shiver in want, ask Mr. Adams whether
it was proper to heap so many myriads of dollars
upon * * *; upon a paper-jobber, who, next
to Hamilton and himself, is perhaps the most detested
character on the continent." He addresses
the people: "You will choose between that man
whose life is unspotted by a crime, and that man
whose hands are reeking with the blood of the
poor, friendless Connecticut sailor![52] I see the tear
of indignation starting on your cheeks. You anticipate
the name of John Adams!" "Mr. Adams
has only completed the scene of ignominy which
Mr. Washington began." Alluding to one of Mr.
Adams's public letters, he says, "In that paper,
with all the cowardly insolence arising from his
assurance of personal safety, with all the fury, but
without the propriety or sublimity of Homer's
Achilles, this hoary-headed incendiary, this libeller
of the Governor of Virginia, bawls out, To arms!
then, to arms! It was floating upon the same
bladder of popularity that Mr. Adams threatened
to make this city the centrical point of a bonfire!"

We need not go farther. Enough has been given
to show the character of "The Prospect before Us."
Libellous as were the extracts copied into the
papers of the day, they were exceeded by the
general tenor of the pamphlet itself,[53] and it contained
some assaults upon Washington, which are
so infamous, that American types would now recoil
from printing them.[54] The time seemed to have
come when the Sedition Law might take its course,
sustained by the public conscience.

Not long after its publication, Luther Martin of
Maryland, found some copies for sale at Greenleaf's
printing office, in New York, bought one, read it, underscored
the striking passages, and carried it with
him to Annapolis. Here he met Samuel Chase, one
of the Associate Justices of the Supreme Court of the
United States. Judge Chase is well known as one
of the immortal signers of the Declaration of Independence.
He loved his country, and enjoyed the
confidence of Washington, who appointed him to
the bench of the Supreme Court in 1796. He was
learned in the law, and indefatigable in his labours.
His temper was quick, his will unbending. He
was a thorough Federalist, and approved with all
his heart of the measures of the administration. It
may be that his political prepossessions were too
strong, that they sometimes warped a judgment
otherwise perfectly upright; but all the vigilance
and energy of party zeal employed against him in
his trial before the Senate of the United States, did
not convict him of using his office to corrupt or to
oppress.

He was soon to hold a Circuit Court for the
United States in Richmond, and on receiving from
Luther Martin the pamphlet of Callender, his attention
was forcibly drawn to it. He said he would
carry it with him, and that "if the Commonwealth
of Virginia was not utterly depraved, or if a jury
of honest men could be found there, he would
punish Callender. He would teach the lawyers of
Virginia the difference between the liberty and the

licentiousness of the press."[55] These remarks may
have been partly jocular, but they were accompanied
by a firm resolve to carry his purpose into
effect.

He arrived in Richmond, and on the 22d of May
opened his court. He charged the grand jury
specially as to the Sedition Law, and on Saturday,
the 24th, they made a presentment of Callender for
writing and publishing the libellous pamphlet. On
this presentment, Thomas Nelson, the District
Attorney, immediately drew an indictment in due
form, which was sent to the grand jury, and found
without delay. In the mean time the judge directed
a capias to issue against the accused, and though
this was a more rigorous process than was customary
in Virginia, in cases not capital, yet the
Senate of the United States afterwards vindicated
the court in using it.[56] The marshal went forthwith
to Petersburg, and on the 27th returned,
bringing in his custody the renowned author,
greatly frightened, and not a little concerned at
"the prospect before" him.[57] He was admitted to
bail, but preparations for his trial were commenced.

William Wirt, George Hay, and Philip Norborne
Nicholas, volunteered to defend the accused;
the first had already become distinguished for those
brilliant qualities which afterwards placed him
among the best advocates of America; the second
was a lawyer of high standing, ardent in temperament,

and honourable in bearing; and the last was
a brother of George and Wilson Carey Nicholas,
and though very young, was the Attorney-General
of Virginia.[58] They appeared in court, and earnestly
pressed for a continuance of the case, on the
ground that Callender was not prepared for his
defence, needed witnesses and documents, and that
they needed preparation. But the Judge refused
to continue; he told them he would give them two
weeks, a month, nay, six weeks, to procure their
testimony.[59] He directed summonses to issue for
Mr. Giles, General Mason, and John Taylor, all of
whom Callender swore to be material witnesses for
him. The process was all executed by the 2d day
of June, but of the three witnesses summoned, only
Colonel Taylor attended. By him the counsel for
the defence proposed to prove the truth of certain
of the allegations in the pamphlet, which were
charged in the indictment, and thus, as to those
allegations, bring Callender within the protecting
clause of the Sedition Law. But Judge Chase required
them to reduce their questions to writing,
and because Colonel Taylor could not prove the
truth of all the allegations of the pamphlet charged
as libellous in the indictment, he refused to permit
his evidence to go to the jury![60] He even intimated
that the counsel for the accused knew this evidence
to be inadmissible, and that their design was to
affect and mislead the populace! It was in this
part of the trial that Judge Chase's conduct was
most reprehensible, and the vote of the Senate upon
it, proved how much they disapproved it. He
seemed afterwards conscious of the impropriety,
and feebly proposed to the District Attorney that
Colonel Taylor's evidence should be admitted, but
Mr. Nelson, insisting that it was illegal, refused it.[61]

When the marshal called a jury for the trial, he
summoned several members of the Republican
party, but, for various causes, they declined to
serve, and the jury, as finally sworn, consisted entirely
of Federalists.[62] Mr. Nicholas proposed to
challenge "the array," (that is the whole jury,) on
the ground that one juror had expressed an opinion
adverse to the accused, and he supported his proposition
by authority; but the Judge said challenges
to the array would only be for partiality in
the sheriff or marshal,[63] and that if they had any objections,
they must apply them to the jurors individually.
When the first juror was called to the
book, Judge Chase asked him, "Have you ever
formed and delivered an opinion upon the charges
contained in the indictment?" Never having seen
or heard the indictment, the man of course answered
in the negative. Mr. Hay earnestly insisted
that the proper question was, "Have you ever
formed and delivered an opinion on the book entitled
`The Prospect before Us,' from which the charges

in the indictment are extracted?" But the court said
no, and the juror was sworn. The eighth juror who
presented himself was John Basset: he was a
friend of the administration, and a man of honour
and delicacy; he begged that he might be excused
from serving, and said that though he had not seen
or heard the indictment, yet he had seen in a
newspaper what purported to be extracts from the
"Prospect before Us," and if they were genuine,
he had formed an unequivocal opinion that the
pamphlet came under the Sedition Law.[64] Nevertheless,
the Judge decided that he was a good juror,
and he was sworn accordingly. In this proceeding
the reader may fear that he detects an improper
leaning against the accused on the part of Judge
Chase. Yet his defence of the principles on which
this part of his conduct was based is so conclusive,
that it not merely satisfied a majority of the Senate,
but has been adopted as law by a well-trained legal
mind in Virginia.[65]

After the evidence for the prosecution was closed,
Thomas Nelson, the District Attorney, addressed
the jury. He belonged to the Republican party,
yet he spared not Callender or his pamphlet. He
opened the libellous passages, one after another,
and disclosed the motives that suggested them with
a clearness which forbade doubt in the minds of
hearers. On the part of the defence, the evidence
of Colonel Taylor being excluded, the counsel had

no resource but to address the jury on the general
subject. And here a curious scene presented itself.

William Wirt rose first. He told the jury that
the position of the defence was embarrassing, because
they were not fully prepared for trial. He
then boldly took the ground that in a criminal case
the jury were to decide both the law and the fact;
that they were therefore to consider the character
of the Sedition Act; that that act was not law, because
unconstitutional. At this point Judge Chase
called out, "Take your seat sir! if you please."
Mr. Wirt complied. The Judge then said that the
jury could not decide the constitutionality of the
Sedition Law, and that it must not be argued for
them, but for the court, and he read part of a long
written opinion to the effect, that the province of
the jury in a criminal case was to interpret a law
in existence; that the Sedition Law had been duly
enacted and was in existence; that whether it
accorded with the Constitution was a question to
be decided exclusively by the Federal Judiciary;
that this was evident from the Constitution itself,
and the laws of Congress providing for the judicial
department; and that to permit such a question to
be decided by a "petit jury," would be highly imprudent.[66] Mr. Wirt again rose, and a sharp dialogue
ensued. Mr. Wirt. "Since the jury have a
right to consider the law, and since the Constitution
is law, the conclusion is certainly syllogistic,
that the jury have a right to consider the Constitution."
Judge Chase. "A non sequitur, sir," (with

a bow.) Mr. Wirt sat down, and did not rise again
during the trial.

Whatever weight may be attributed to Judge
Chase's opinion, it is difficult to evade the force of
Mr. Wirt's argument on the subject. By an Act
of Congress, the rules of proceeding in the State
Courts had been adopted, wherever they were applicable,
for the Federal Courts. The common
law rule for criminal trials has long been recognised
in Virginia. In favour of life and liberty,
the jury may decide both law and fact, even against
the most positive instruction from the bench. If
they acquit, their verdict cannot be set aside or reviewed
by appeal. Therefore in truth they may
decide the constitutionality of a law, for if they believe
an Act of Congress unconstitutional, they
may acquit the accused, however plainly he may
have violated it. If then, in fact, they may decide
this question, why shall it not be argued before
them?

Mr. Nicholas followed Mr. Wirt, and notwithstanding
the Judge's view, he pursued nearly the
same course of argument, urging that the jury had
a right to find a general verdict, and that therefore
they must of necessity pass upon the constitutionality
of the law. He was sometimes interrupted,
but was at last permitted to proceed to his conclusion.
Mr. Hay spoke last for the defence; he had
already come in contact with the court with some
violence, and neither had forgotten it. Mr. Hay
said, "The arguments which I shall urge I shall
address to the court, not wishing to be heard by

the jury, or to be attended to by the numerous auditory
now present." But he had not proceeded far
before the Judge interrupted him; a colloquy ensued,
and when Mr. Hay resumed his argument,
he was again interrupted. He immediately stopped,
folded up his papers, and prepared to leave the
court. The Judge called, urged him to proceed,
and told him "there was no occasion to be captious."
The counsel for Callender all left the room
and did not return.[67]

The conduct of Judge Chase to the three advocates
who had volunteered to defend rather the
Constitution than the accused, was made a special
item of charge against him, in the ordeal through
which he passed before the Senate of the United
States. And there can be no doubt that his course
was stern beyond propriety, and irritating beyond
judicial politeness. But there was an amusing
correspondence between his treatment of these
several gentlemen, and their own peculiar traits
and dispositions. In the words of the Apostle, the
judge became "all things to all men." "To the
logical Mr. Wirt, he was logical; to the polite Mr.
Nicholas, he was polite; to the zealous and pertinacious
Mr. Hay, he was warm and determined."[68]

When the argument before the jury was closed,
Judge Chase read to them in full his opinion
against their right to determine the constitutionality
of the Sedition Law. He then explained the
case before them; told them the fact of publication

must be proved, and that they must be satisfied
the writing was "false, scandalous, and malicious."
He spoke of Mr. Adams's long and faithful service
to his country, and declared that he was rejoiced
that Callender was not a native American. (June
3d.) The jury retired, carrying with them "The
Prospect before Us," and in two hours they returned
into court with a verdict of "Guilty."[69] On
the 4th of June, Callender was brought in, and the
court pronounced sentence. He was to be fined
two hundred dollars, to be imprisoned nine months,
and to give security for his future good behaviour.
He was immediately committed to the custody of
the marshal, to be kept until the fine should be
paid, and the security given.[70]

Thus, one of the laws which had excited the
fears of Virginia, against which she protested in
1798, which she again deliberately condemned in
1799, and which she continued to the last to regard
as unconstitutional, was carried into force upon her
soil. We may readily suppose that party feeling
ran high in Richmond, and that the events of the
trial were not calculated to allay it. Yet there was
so much that was really disgusting in Callender's
pamphlet, and he was personally so little respected,
that public sympathy did not make him its object.
The law and its results were submitted to. No
effort was made to arrest them by violence.

But as the elections of the fall approached, the
Republicans of Virginia were ceaseless in their
efforts. The sequel of the contest throughout the
United States, is well known. Thomas Jefferson
and Aaron Burr, received a majority of electoral
votes over John Adams. But as Mr. Jefferson and
Mr. Burr had precisely the same number of votes,
and the Constitution did not then require voters to
specify which candidate they wished to be President,
and which Vice-President, the election at
last devolved upon the House of Representatives.
Here the Federalists voted for Mr. Burr; and not
until after thirty-five ballots, and imminent danger
of a dissolution of the Government, did some of
the less inflexible give way, and thus secure the
election of Mr. Jefferson.[71] But the popular voice
had been heard; the people had declared against
the Alien and Sedition Laws; the object of Virginia
was accomplished without either nullifying
the law, or overturning the government. Not long
after the success of the new administration became
apparent, these unconstitutional acts were repealed.
It was decided that America might be saved without
making her President at once lawgiver, judge,
and executioner, upon the alien; and that sedition
might be quelled without fettering the press, and
proscribing opinions.

And yet, though the triumph of liberty, and that
of law and order, had been achieved, and had gone
hand and hand together, they had not been won
without a sacrifice. Stormy passions had been

roused, which did not subside until they had rent
asunder many ties; characters had been assailed
which were once regarded with a nation's reverence.
Men had learned to think lightly of past
services, when covered with present obloquy; and
minds once devout had been taught to listen with
patience, and even with pleasure, to infidel philosophy.
There had been evil in both parties, and
there had been good wrought, not as the immediate
object of either, but as the work of the Power that
can bring light out of darkness, and order out of
chaos. Virginia has little cause to wish renewed
the scenes of a struggle which arrayed her noblest
sons in battle against each other, and infused a bitterness
into her spirit that will, perhaps, in some
measure, endure with her existence.