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v.]

The Virginia and Kentucky Resolutions.

153

on their giving bonds for good behaviour. The Sedition Act provided severe penalties for those who should resist the lawful acts of the federal officials, and for all who might be concerned in any publication bringing or tending to bring the United States government or any of its officers into disrepute. At nearly the same time, the period of residence required for naturalization was lengthened from five to fourteen years. Led by Albert Gallatin, a recent immigrant from Switzerland, the Republicans in Congress strenuously opposed these acts. But they were overborne, and the laws were passed. Defeated in Congress, the Republicans then had recourse to expedients familiar enough in pre-revolutionary days. The legislatures of Kentucky and Virginia passed Resolutions (1798-99) which were transmitted to the legislatures of the other States for their action thereon. The Kentucky Resolutions were introduced into the legislature of that State by Mr Breckenridge. The real author, however, was Jefferson, and it is he who must be held responsible for the constitutional theories propounded in these resolutions. These theories were briefly (1) that the Constitution was a compact between the States; (2) that the co-States were the judges of the validity of federal laws; and (3) not the federal government which was their agent. In the original draft, as written by Jefferson, the reasoning was carried to its logical conclusion, namely, that the States might "nullify" those acts of the Federal Congress which were outside the strict limits of the powers delegated to that body. This dogma of nullification was too bold for the Kentucky legislators in 1798; but in the resolutions passed the next year it was set forth at length. The Virginia Resolutions were drafted by Madison, who was now firmly attached to the Republican party. They were much milder in tone, as befitted the work of the more cautious Madison. Nothing came of either of these attempts to secure concerted action on the part of the States against the federal government.

Hamilton's Advice.

A letter which Hamilton wrote to Mr Dayton, Speaker of

the House of Representatives, contains the extreme Federalist view, and may be regarded in

some measure as an answer to the Kentucky and Virginia Resolutions. In this letter, Hamilton advocated the cutting up of the States into small divisions for the purposes of increasing the number and power of the federal courts. He also thought that an amendment to the Constitution was desirable, authorizing Congress at its discretion to divide the larger States into two or more States. He advised the retention of the army on its present war footing, even if peace

should be made with France. At this moment Adams, without any consultation with the members of his cabinet or with the party leaders, reopened negotiations with France, and thus put an abrupt ending to the dreams of Hamilton and his friends. It appears that the publication of the X Y Z correspondence

caused great excitement among the governing Negotiation

circles in France. Talleyrand saw that he had

gone too far and tried to draw back. An intimation was conveyed to Vans Murray, the American Minister at the Hague, that if the United States would send an envoy to Paris, he would be well received. Adams grasped at the chance offered him to bring peace to his country. He nominated Vans Murray as Minister to France.

But the party leaders in the Senate, amazed and furious at this sudden change of front, seemed determined to reject the nomination. The President then substituted a commission, consisting of Ellsworth, Jay's successor as Chief Justice, Patrick Henry, and Vans Murray, and these nominations were confirmed. Patrick Henry, now old and infirm, declined to go, and Davie, of North Carolina, another Southern Federalist, was appointed in his stead. Adams also seized the first opportunity to remove his most treacherous advisers, substituting John Marshall, of Virginia, for Timothy Pickering as Secretary of State.

with France renewed.

v.]

The Election of 1800.

155

The Commissioners were well treated in France. Napoleon was now First Consul. He appointed a com

Treaty with mission, presided over by Joseph Bonaparte, to

France, 1800. negotiate with them, but he refused to pay for American property seized by the French government or by its agents during the recent troubles or to consent to the formal abandonment of the Treaty of Alliance of 1778. These subjects were to be reserved for future negotiations. The United States Senate refused to ratify the clause embodying this arrangement. In other respects the treaty was satisfactory to both parties, and it was ultimately agreed that the United States should give up its contention as to the payment of claims, and the French government consented to regard the Treaty of 1778 as no longer binding. Thus by the act of the Federalist Senate, the United States became liable to its own citizens for French spoliations committed before 1800. It is only within the last few years, when legal proof has become almost impossible, that the American government has consented to pay these "French spoliation claims."

In 1800, for the first time, a presidential election was contested with great vigour and acrimony. The Federalist party laboured under many serious disadvantages. Adams's administration had been most fortunate for the country, and time has vindicated the purity of his motives and the wisdom of his actions. He was still popular with the mass of the party and he became the Federalist candidate. There was no one else to be nominated with any prospect of success. Hamilton would have been an impossible candidate; Jay refused to enter national politics again; and Washington and Henry were both dead. Accepting Adams as the inevitable leader, Hamilton embarked on a course of petty intrigue similar to those intrigues of 1788 and 179 already described. The candidate for Vice-President was Charles C. Pinckney of South Carolina. It was now proposed

The Election of 1800.

that the South Carolina electors should vote for Jefferson and Pinckney, in the expectation that the additional votes thus given to Pinckney would elect him President, and return Adams to the Vice-Presidency. Pinckney honourably declined to be a party to the transaction. To discredit Adams with his own party, Hamilton wrote a long dissertation to prove Adams's unfitness for the highest office. It was intended that this document should be passed from hand to hand among the leaders of the party. But the Republicans secured a copy and published it far and wide. The Federalists would probably have been defeated in any event, as the Alien and Sedition Laws had aroused so much opposition that they dreaded to have their own instrument put into force. Every prosecution under these laws converted thousands of voters to the Republican party. Jefferson had now perfected the organization of that party, and while the Federalists were quarrelling among themselves, the Republicans were united and able to take advantage of every opportunity that presented itself. The Republican candidate for Vice-President was Aaron Burr, a disreputable New York politician - one of the first and ablest of his kind. He had formed the New York Republicans into a compact well-drilled political organization, and had thus won his nomination. When the electoral votes were counted it was found that Jefferson and Burr had each received seventythree votes, while Adams had sixty-five and Pinckney sixty-four votes. It was clear that Adams and Pinckney were defeated. But who was chosen President, Jefferson or Burr? The Constitution provided that in case of a tie of this

description the House of Representatives, voting Amendment, by States, should elect as President one of the 1804.

two having the highest number. The Federalists were in a majority in the House both as ordinarily constituted and also when organized on the basis of each State having one vote. There was not the slightest doubt in anyone's mind as

The Twelfth

v.]

The Fudiciary Act, 1801.

157

to which candidate the people had intended to elect President. Jefferson was the foremost man in the country, the creator of the Republican party, and loved and respected by nine-tenths of the voters of that party. Burr, on the other hand, was a mere politician who had been placed on the ticket to secure the vote of New York. The Federalists, blinded by their hatred of Jefferson, determined to elect Burr President. This was against Hamilton's wish, who disliked Burr on his own account. Thirty-five ballots were cast before the Federalists could bring themselves to carry out the clearly-expressed will of the people. Ultimately Jefferson was declared elected President and Burr Vice-President. To avoid the many inconveniences which were inseparable from the existing mode of electing President and Vice-President, an amendment to the Constitution (the Twelfth Amendment) was adopted in 1804. The old machinery of electors was preserved, but each elector in the future was to vote for President and for Vice-President on separate and distinct ballots. In case no candidate for President should receive a majority of all the votes cast, it was provided that the House of Representatives, voting by States, should elect one of the three having the highest number of votes President. In a similar case as to the Vice-President the Senate should elect one of the two having the highest number Vice-President. The only valuable feature of the old system was that able men were nominated for both offices, as it was very uncertain how any election would turn out.

Since 1804, however, second-rate and even third-rate men have been chosen to the second place.

Defeated at the polls, the Federalists retreated "into the Judiciary as a stronghold.” After the results of the elections were known they passed a law

The Judiciary

Act, 1801. largely increasing the national judicial establishment, although the existing organization was more than sufficient to transact all the judicial business of the country.

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