DRAFT
OF THE KENTUCKY RESOLUTIONS OCTOBER
1798 Art. 1 –
Resolved, That the several States composing the United States of America, are
not united on the principle of unlimited submission to their General
Government; but that, by a compact under the style and title of a Constitution
for the United States, and of amendments thereto, they constituted a General
Government for special purposes, -- delegated to that government certain
definite powers, reserving, each State to itself, the residuary mass of right to
their own self-government; and that whensoever the General Government assumes
undelegated powers, its acts are unauthoritative, void, and of no force; that
to this compact each State acceded as a State, and is an integral party, its
co-States forming, as to itself, the other party: that the government created
by this compact was not made the exclusive or final judge of the extent of the
powers delegated to itself; since that would have made its discretion, and not
the Constitution, the measure of its powers; but that, as in all other cases of
compact among powers having no common judge, each party has an equal right to
judge for itself, as well of infractions as of the mode and measure of redress. Art. 2 –
Resolved, That the Constitution of the United States, having delegated to
Congress a power to punish treason, counterfeiting the securities and current
coin of the United States, piracies, and felonies committed on the high seas,
and offences against the law of nations, and no other crimes whatsoever; and it
being true as a general principle, and one of the amendments to the
Constitution having also declared, that "the powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people," therefore the act
of Congress, passed on the 14th day of July, 1798, and intituled "An Act
in addition to the act intituled An Act for the punishment of certain crimes
against the United States," as also the act passed by them on the -- day
of June, 1798, intituled "An Act to punish frauds committed on the bank of
the United States," (and all their other acts which assume to create,
define, or punish crimes, other than those so enumerated in the Constitution,)
are altogether void, and of no force; and that the power to create, define, and
punish such other crimes is reserved, and, of right, appertains solely and
exclusively to the respective States, each within its own territory. Art. 3 –
Resolved, That it is true as a general principle, and is also expressly
declared by one of the amendments to the Constitution, that "the powers
not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people;"
and that no power over the freedom of religion, freedom of speech, or freedom
of the press being delegated to the United States by the Constitution, nor
prohibited by it to the States, all lawful powers respecting the same did of
right remain, and were reserved to the States or the people: that thus was
manifested their determination to retain to themselves the right of judging how
far the licentiousness of speech and of the press may be abridged without
lessening their useful freedom, and how far those abuses which cannot be
separated from their use should be tolerated, rather than the use be destroyed.
And thus also they guarded against all abridgment by the United States of the
freedom of religious opinions and exercises, and retained to themselves the
right of protecting the same, as this State, by a law passed on the general
demand of its citizens, had already protected them from all human restraint or
interference. And that in addition to this general principle and express
declaration, another and more special provision has been made by one of the
amendments to the Constitution, which expressly declares, that "Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof, or abridging the freedom of speech or of the press:"
thereby guarding in the same sentence, and under the same words, the freedom of
religion, of speech, and of the press: insomuch, that whatever violated either,
throws down the sanctuary which covers the others, and that libels, falsehood,
and defamation, equally with heresy and false religion, are withheld from the
cognizance of federal tribunals. That, therefore, the act of Congress of the
United States, passed on the 14th day of July, 1798, intituled "An Act in
addition to the act intituled An Act for the punishment of certain crimes
against the United States," which does abridge the freedom of the press,
is not law, but is altogether void, and of no force. Art. 4 –
Resolved, That alien friends are under the jurisdiction and protection of the
laws of the State wherein they are: that no power over them has been delegated
to the United States, nor prohibited to the individual States, distinct from
their power over citizens. And it being true as a general principle, and one of
the amendments to the Constitution having also declared, that "the powers
not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people,"
the act of the Congress of the United States, passed on the -- day of July,
1798, intituled "An Act concerning aliens," which assumes powers over
alien friends, not delegated by the Constitution, is not law, but is altogether
void, and of no force. Art. 5 –
Resolved, That in addition to the general principle, as well as the express
declaration, that powers not delegated are reserved, another and more special
provision, inserted in the Constitution from abundant caution, has declared
that "the migration or importation of such persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the Congress
prior to the year 1808;" that this commonwealth does admit the migration
of alien friends, described as the subject of the said act concerning aliens:
that a provision against prohibiting their migration, is a provision against
all acts equivalent thereto, or it would be nugatory: that to remove them when
migrated, is equivalent to a prohibition of their migration, and is, therefore,
contrary to the said provision of the Constitution, and void. Art. 6 –
Resolved, That the imprisonment of a person under the protection of the laws of
this commonwealth, on his failure to obey the simple _order_ of the President
to depart out of the United States, as is undertaken by said act intituled
"An Act concerning aliens," is contrary to the Constitution, one
amendment to which has provided that "no person shall be deprived of
liberty without due process of law;" and that another having provided that
"in all criminal prosecutions the accused shall enjoy the right to public
trial by an impartial jury, to be informed of the nature and cause of the
accusation, to be confronted with the witnesses against him, to have compulsory
process for obtaining witnesses in his favor, and to have the assistance of counsel
for his defence," the same act, undertaking to authorize the President to
remove a person out of the United States, who is under the protection of the
law, on his own suspicion, without accusation, without jury, without public
trial, without confrontation of the witnesses against him, without hearing
witnesses in his favor, without defence, without counsel, is contrary to the
provision also of the Constitution, is therefore not law, but utterly void, and
of no force: that transferring the power of judging any person, who is under
the protection of the laws, from the courts to the President of the United
States, as is undertaken by the same act concerning aliens, is against the
article of the Constitution which provides that "the judicial power of the
United States shall be vested in courts, the judges of which shall hold their
offices during good behavior;" and that the said act is void for that
reason also. And it is further to be noted, that this transfer of judiciary
power is to that magistrate of the General Government who already possesses all
the Executive, and a negative on all legislative powers. Art. 7 –
Resolved, That the construction applied by the General Government (as is
evidenced by sundry of their proceedings) to those parts of the Constitution of
the United States which delegate to Congress a power "to lay and collect
taxes, duties, imports, and excises, to pay the debts, and provide for the
common defence and general welfare of the United States," and "to
make all laws which shall be necessary and proper for carrying into execution
the powers vested by the Constitution in the government of the United States,
or in any department or officer thereof," goes to the destruction of all
limits prescribed to their power by the Constitution: that words meant by the
instrument to be subsidiary only to the execution of limited powers, ought not
to be so construed as themselves to give unlimited powers, nor a part to be so
taken as to destroy the whole residue of that instrument: that the proceedings
of the General Government under color of these articles, will be a fit and
necessary subject of revisal and correction, at a time of greater tranquillity,
while those specified in the preceding resolutions call for immediate redress. Art. 8 –
Resolved, That a committee of conference and correspondence be appointed, who
shall have in charge to communicate the preceding resolutions to the
legislatures of the several States; to assure them that this commonwealth
continues in the same esteem of their friendship and union which it has
manifested from that moment at which a common danger first suggested a common
union: that it considers union, for specified national purposes, and
particularly to those specified in their late federal compact, to be friendly
to the peace, happiness and prosperity of all the States: that faithful to that
compact, according to the plain intent and meaning in which it was understood
and acceded to by the several parties, it is sincerely anxious for its
preservation: that it does also believe, that to take from the States all the
powers of self-government and transfer them to a general and consolidated
government, without regard to the special delegations and reservations solemnly
agreed to in that compact, is not for the peace, happiness or prosperity of
these States; and that therefore this commonwealth is determined, as it doubts
not its co-States are, to submit to undelegated, and consequently unlimited
powers in no man, or body of men on earth: that in cases of an abuse of the
delegated powers, the members of the General Government, being chosen by the
people, a change by the people would be the constitutional remedy; but, where
powers are assumed which have not been delegated, a nullification of the act is
the rightful remedy: that every State has a natural right in cases not within
the compact, (casus non foederis,) to nullify of their own authority all
assumptions of power by others within their limits: that without this right,
they would be under the dominion, absolute and unlimited, of whosoever might
exercise this right of judgment for them: that nevertheless, this commonwealth,
from motives of regard and respect for its co-States, has wished to communicate
with them on the subject: that with them alone it is proper to communicate,
they alone being parties to the compact, and solely authorized to judge in the
last resort of the powers exercised under it, Congress being not a party, but
merely the creature of the compact, and subject as to its assumptions of power
to the final judgment of those by whom, and for whose use itself and its powers
were all created and modified: that if the acts before specified should stand,
these conclusions would flow from them; that the General Government may place
any act they think proper on the list of crimes, and punish it themselves
whether enumerated or not enumerated by the Constitution as cognizable by them:
that they may transfer its cognizance to the President, or any other person,
who may himself be the accuser, counsel, judge and jury, whose _suspicions_ may
be the evidence, his _order_ the sentence, his _officer_ the executioner, and
his breast the sole record of the transaction: that a very numerous and
valuable description of the inhabitants of these States being, by this
precedent, reduced, as outlaws, to the absolute dominion of one man, and the
barrier of the Constitution thus swept away from us all, no rampart now remains
against the passions and the powers of a majority in Congress to protect from a
like exportation, or other more grievous punishment, the minority of the same
body, the legislatures, judges, governors, and counsellors of the States, nor
their other peaceable inhabitants, who may venture to reclaim the
constitutional rights and liberties of the States and people, or who for other
causes, good or bad, may be obnoxious to the views, or marked by the suspicions
of the President, or be thought dangerous to his or their election, or other
interests, public or personal: that the friendless alien has indeed been
selected as the safest subject of a first experiment; but the citizen will soon
follow, or rather, has already followed, for already has a sedition act marked
him as its prey: that these and successive acts of the same character, unless
arrested at the threshold, necessarily drive these States into revolution and
blood, and will furnish new calumnies against republican government, and new
pretexts for those who wish it to be believed that man cannot be governed but
by a rod of iron: that it would be a dangerous delusion were a confidence in
the men of our choice to silence our fears for the safety of our rights: that
confidence is everywhere the parent of despotism free government is founded in jealousy, and not in confidence; it
is jealousy and not confidence which prescribes limited constitutions, to bind
down those whom we are obliged to trust with power: that our Constitution has
accordingly fixed the limits to which, and no further, our confidence may go;
and let the honest advocate of confidence read the alien and sedition acts, and
say if the Constitution has not been wise in fixing limits to the government it
created, and whether we should be wise in destroying those limits. Let him say
what the government is, if it be not a tyranny, which the men of our choice
have conferred on our President, and the President of our choice has assented
to, and accepted over the friendly strangers to whom the mild spirit of our
country and its laws have pledged hospitality and protection: that the men of
our choice have more respected the bare _suspicions_ of the President, than the
solid right of innocence, the claims of justification, the sacred force of
truth, and the forms and substance of law and justice. In questions of power,
then, let no more be heard of confidence in man, but bind him down from
mischief by the chains of the Constitution. That this commonwealth does
therefore call on its co-States for an expression of their sentiments on the
acts concerning aliens, and for the punishment of certain crimes herein before
specified, plainly declaring whether these acts are or are not authorized by
the federal compact. And it doubts not that their sense will be so announced as
to prove their attachment unaltered to limited government, whether general or
particular. And that the rights and liberties of their co-States will be
exposed to no dangers by remaining embarked in a common bottom with their own.
That they will concur with this commonwealth in considering the said acts as so
palpably against the Constitution as to amount to an undisguised declaration
that that compact is not meant to be the measure of the powers of the General
Government, but that it will proceed in the exercise over these States, of all
powers whatsoever: that they will view this as seizing the rights of the States,
and consolidating them in the hands of the General Government, with a power
assumed to bind the States, not merely as the cases made federal, (casus
foederis,) but in all cases whatsoever, by laws made, not with their consent,
but by others against their consent: that this would be to surrender the form
of government we have chosen, and live under one deriving its powers from its
own will, and not from our authority; and that the co-States, recurring to
their natural right in cases not made federal, will concur in declaring these
acts void, and of no force, and will each take measures of its own for
providing that neither these acts, nor any others of the General Government not
plainly and intentionally authorized by the Constitution, shall be exercised
within their respective territories. Art. 9 –
Resolved, That the said committee be authorized to communicate by writing or
personal conferences, at any times or places whatever, with any person or
person who may be appointed by any one or more co-States to correspond or
confer with them; and that they lay their proceedings before the next session
of Assembly. FONTE: |
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