Madison and Jefferson (132 page)

72.
TJ to JM, December 16, 1786,
RL
, 1:458.

73.
“Jefferson Draft of the Kentucky Resolutions of 1798,”
RL
, 2:1082–84. More specifically, Jefferson laid out his theory in these critical terms: “In the case of an abuse of 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.”

74.
Madison spelled this out in greater detail in his
Report of 1800
, drafted to defend the Virginia Resolutions. He explained that the failure of the Alien Act to offer detailed instructions gave the president too much latitude and transferred the legislative power to him: “His will is the law.” He contended as well that the president was “to stand in the place of the Judiciary also …, his order the only judgment which is to be executed.” See
Report of 1800
, and “Virginia Resolutions,” December 21, 1798,
PJM
, 17:188–89, 324–25.

75.
“Virginia Resolutions,” December 21, 1798,
PJM
, 17:189–90. Though Jefferson and Madison both relied on the Bill of Rights, Jefferson based his argument primarily on the Tenth Amendment, that “the powers not delegated to the U.S. by the constitution, nor prohibited to the states, are reserved to the states respectively, or to the people.” He did mention the First Amendment but mainly as a corollary to his ruling principle that the freedom of speech was reserved to the states. Madison never mentioned the Tenth Amendment. His main contention was that the First Amendment proved that the Sedition Act was unconstitutional. On Madison’s deliberations during the period during which the Resolutions were drafted and considered, see also Lance Banning,
The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic
(Ithaca, N.Y., 1995), 388–93.

76.
Directly disagreeing with the implications of Jefferson’s message to the Kentucky legislature, Madison posed to him: “Have you ever considered thoroughly the distinction between the power of the
State
and that of the
Legislature
, on questions relating to the federal pact.” He was arguing that the state ratifying conventions (not the state legislatures) had forged the Union; an individual state legislature was not the legitimate organ for declaring federal laws null and void. In asserting each state’s right to nullify an act of Congress that it deemed injurious, Jefferson was very close to the perspective South Carolina was to take, more ominously, in 1831. JM to TJ, December 29, 1798,
RL
, 2:1085; Ketcham, 395–97, 400; Brant, 3:462. Adrienne Koch provided the earliest analysis of the Jefferson-Madison exchange over the resolutions; see Koch,
Jefferson and Madison: The Great Collaboration
(New York, 1950), chap. 7.

77.
The Connecticut legislature claimed that “controlling the measures of the general government,” as expressed in the Kentucky and Virginia Resolutions, was “foreign to the duties of the State Legislatures.” The Maryland legislature resolved that the Virginia Resolutions “contain the unwarrantable doctrine, of the competency of the State Government, by a legislative act, to declare an act of the Federal Government unconstitutional and void.” Massachusetts denied that its state legislature had the power to decide the constitutionality of the acts of the federal government. The Delaware and New York legislatures treated the two sets of resolutions as the same. See “Connecticut, versus Virginia and Kentucky,”
Columbian Centinel
, June 6, 1799; “Virginia and Kentucky Resolutions,” signed “Civis,” ibid., February 2, 1799;
Vergennes Gazette
[Vergennes, Vt.], March 7, 1799; “Maryland Legislature,”
Philadelphia Gazette
, January 1, 1799;
Gazette of the United States
, February 7, 1799; on New York, see
Providence Gazette
, March 2, 1799, and
Philadelphia Gazette
, March 3, 1799.

78.
Smith, “Grass Roots Origins of Kentucky Resolutions,” 238–40. There was a strange twist when it came to the Virginia Resolutions: two versions existed. Without consulting Madison, Jefferson had contributed a subtle alteration to his friend’s draft, convincing Wilson Cary Nicholas and John Taylor to add the phrase “that the [Alien and Sedition Acts] are, and were ab initio null, void and of no force, or effect.” This was what first appeared in the national newspapers. But it was not the official version. Whether he was influenced by Madison or reached the decision on his own, Taylor changed the draft back to its original form just before it passed the Assembly.

Annulment meant that the marriage never existed; to be void
ab initio
was to be automatically considered null and void. Jefferson seemed to be saying that, in effect, the Alien and Sedition Acts never existed, because they relied on unconstitutional powers.
His language was declarative—there was no room for debate: the acts were illegitimate, invalid, without legal standing. He was probably drawn to the concept of annulment because it was based on the idea of higher law. An annulled marriage was not recognized in the eyes of God, and thus distinct from the rule of human or civil law. “Virginia Resolutions: Editorial Note,”
PJM
, 17:187–88; Koch and Ammon, “Virginia and Kentucky Resolutions,” 159–60.

79.
Kevin Gutzman, “A Troublesome Legacy: James Madison and ‘the Principles of 98,’ ”
Journal of the Early Republic
15 (Winter 1995): 581.

80.
Oracle of Dauphin
[Harrisburg, Pa.], February 2, 1799; “Virginia Resolutions,”
Columbian Centinel
, February 2, 1799;
Albany Centinel
, January 1, 1799; reprint of Cobbett’s essay in “Virginia Folly and Impudence,”
Albany Centinel
, January 1, 1799; “Truth and Patriotism,”
Weekly Oracle
[New London, Conn.], March 11, 1799.

81.
Washington to Henry, January 15, 1799,
PGW-RS
, 3:317–20; Ames to Wolcott, January 12, 1800,
Works of Fisher Ames
, ed. Seth Ames (Indianapolis, 1983), 2:1347; Ketcham, 397.

82.
Henry to Washington, February 12, 1799,
PGW-RS
, 3:370–72.

83.
Baltimore Telegraph
, as reprinted in the New York paper
American Citizen
, July 31, 1800;
Bee
, September 24, 1800; similarly, the
Carlisle
[Pa.]
Gazette
, July 30, 1800, denoted Jefferson an “inestimable patriot” and stated, “We are not afraid of the effect of false, scandalous and malicious writings.”

84.
Washington to Marshall, December 30, 1798; Marshall to Washington, January 8, 1799; Adams to Washington, February 19, 1799,
PGW-RS
, 3:297, 309–10, 387–88.

85.
Edmund Pendleton,
An Address of the Honorable Edmund Pendleton of Virginia to the American Citizens, on the State of Our Country
(Boston, 1799); TJ to Pendleton, January 29, 1799,
PTJ
, 30:661–62. Jefferson took an active interest in the circulation of pamphlets that he approved of, not just Pendleton’s; see Dumas Malone,
Thomas Jefferson as a Political Leader
(Berkeley, Calif., 1963), 41–42.

86.
“Madison’s
Aurora General Advertiser
Essays,”
PJM
, 17:211–20, 237–43. The plural use of
governments
, in the first essay, represents the common device of referring to the now-fifteen states of the federal Union; similarly, the common syntactical expression of this period: “The United States are …”

87.
JMB
, 2:998–1013.

88.
Brant, 3:465.

89.
TJ to JM, August 23, 1799,
RL
, 2:1118–19.

90.
Monroe to JM, November 22, 1799,
PJM
, 17:278–79; Freeman,
Affairs of Honor
, 68.

91.
In the summer of 1798 the widowed Eliza House Trist and her grown son were also added to the neighborhood. For many years she had been like family to the Virginia delegation who lodged at her popular Philadelphia boardinghouse. In the spring of 1799 Dr. William Bache, another Franklin grandson, was lured to Albemarle by Jefferson, acquiring six hundred acres a few miles north of Monticello, which he unimaginatively named “Franklin.” See JM to Monroe, January 30, 1799,
PJM
, 17:222; Ammon,
James Monroe
, 170–73;
JMB
, 2:1037n;
PTJ
, 33:241n.

92.
Lafayette to Washington, May 9, 1799; Washington to Timothy Pickering, July
14, 1799; William Vans Murray to Washington, August 17, 1799,
PGW-RS
, 4:54–59, 187, 261–62; William Howard Adams,
Gouverneur Morris: An Independent Life
(New Haven, Conn., 2003), 261–62. Lafayette also received a letter from Hamilton beseeching him not to come to America.

93.
Patrick Henry, despite his own earlier denunciations of slavery, conveyed his human property to his wife and children in his will, allowing only in a codicil that his widow might wish to “set free one or two of my slaves.” That still left dozens in bondage. His words of 1773 to a Quaker, commending that sect for the “moral and political good” of practicing abolition and urging all Americans to do the same, ring hollow. But Henry’s hypocrisy was typical. Like most Virginia planters, on acquiring new property in 1797, he wrote to the seller: “I will also hire the Negroes as they are desirous to stay together & be not parted, & I will use them well.” He accepted slavery as a responsibility, that is, owning slaves was morally supportable if they were “used well.” See James M. Elson, ed.,
Patrick Henry in His Speeches and Writings
(Lynchburg, Va., 2007), 66–68 and Appendix D; Henry to William M. Booker, October 31, 1797, Patrick Henry Papers, Library of Virginia, Richmond, Va.; Matthew Mason,
Slavery and Politics in the Early American Republic
(Chapel Hill,
N.C., 2006), 19–21; Ferling,
First of Men
, 474–76.

94.
Andrew Burstein, “Immortalizing the Founding Fathers: The Excesses of Public Eulogy,” in Nancy Isenberg and Andrew Burstein, eds.,
Mortal Remains: Death in Early America
(Philadelphia, 2003), 97–98.

95.
“Death of George Washington,”
PJM
, 17:295; Beeman,
Old Dominion and New Nation
, 216–17.

1.
Noble E. Cunningham, Jr.,
The Jeffersonian Republicans: The Formation of Party Organization, 1789–1801
(Chapel Hill, N.C., 1959), 131–33. Jefferson would continue into the next year encouraging the likes of Irishmen Matthew Lyon and John Daly Burk to publish. See
JMB
, 2:1014n. He and Madison also supported Lyon’s son’s
Friend of the People
and Samuel Harrison Smith’s
National Intelligencer.
See JM to TJ, December 20, 1800,
RL
, 2:1155.

2.
Madison’s report was long and detailed and focused heavily on the law, incorporating the arguments of Virginia jurist St. George Tucker, who had authored a
Letter to a Member of Congress; Respecting the Alien and Sedition Laws.
See “The Report of 1800,”
PJM
, 17:303–51, esp. 338, 344–48. The
Columbian Centinel
may have been correct when it recorded a year earlier that the Virginia and Kentucky Resolutions “have had a rapid passage from
Contempt
to
Oblivion.
” See
Columbian Centinel
, January 1, 1799.

3.
JM to TJ, February 14, 1800,
RL
, 2:1126. Jack N. Rakove writes that the centrality of foreign policy disputes in shaping Americans politics for two full decades after 1793 was unexpected and made “control of the presidency the decisive fact of American politics and governance.” See Rakove, “The Political Presidency: Discovery and Invention,” in James Horn, Jan Ellen Lewis, and Peter S. Onuf, eds.,
The Revolution of 1800: Democracy, Race, and the New Republic
(Charlottesville, Va., 2002), quote at 46.

4.
TJ to JM, March 4 and March 8, 1800,
RL
, 2:1127–29; Carl E. Prince,
New Jersey’s Jeffersonian Republicans: The Genesis of an Early Party Machine, 1789–1817
(Chapel Hill, N.C., 1967), 54–68; Cobbett letter of March 6, 1800, in
Letters from William Cobbett to Edward Thornton, Written in the Years 1797 to 1800
, ed. G.D.H. Cole (London, 1937), 67–68. Jefferson won 14 of 15 electoral votes in Pennsylvania in 1796.

5.
Nancy Isenberg,
Fallen Founder: The Life of Aaron Burr
(New York, 2007), 197–202.

6.
TJ to JM, April 4, 1800; JM to TJ, April 20, 1800,
RL
, 2:1132–34.

7.
Votes published in
Herald of Virginia
[Fincastle], December 5, 1800; Daniel P. Jordan,
Political Leadership in Jefferson’s Virginia
(Charlottesville, Va., 1983), 17–18; Cunningham,
Jeffersonian Republicans
, 196.

8.
Providence Journal
, July 9, 1800. Suggesting how spotty knowledge of Jefferson’s association with the Declaration was, a seemingly illogical sentence appeared obscurely in the middle of an unrelated story in the Federalist
Alexandria Advertiser
on December 18, 1798: “The violent antipathy of some men to
Thomas Jefferson
is accounted for by his having framed the Declaration of American Independence.” The verb
framed
had not been used previously to describe Jefferson’s role. The Philadelphia
Aurora
and smaller Republican presses around the country had more regularly, and always approvingly, credited “the immortal” Jefferson for writing the Declaration and his “co-patriots” for playing their part in the “deathless instrument” of national birth. See, for example,
Aurora
, May 30, 1798; and the Salem, N.Y.,
Northern Centinel
, July 23, 1798, reprinting from a Boston paper. See also Robert M. S. McDonald, “Thomas Jefferson’s Changing Reputation as Author of the Declaration of Independence,”
Journal of the Early Republic
19 (Summer 1999): 169–95; Simon P. Newman,
Parades and the Politics of the Streets
(Philadelphia, 1997), chap. 3.