He framed his opposition to the Alien and Sedition Acts differently than Jefferson did. The Alien Act violated the separation of powers, he said, by transferring both judicial and legislative powers to the executive. This gave the president the judicial power to set up hearings to judge whether a person could be deported; the president alone determined proof of guilt without having to follow any congressional guidelines on what constituted a danger to the public safety.74
While the Sedition Act relied on an undelegated power, Madison considered its more egregious transgression to be that of violating what was “expressly and positively forbidden” in the First Amendment to the Constitution. Quoting from the Virginia Ratifying Convention, he reiterated that freedom of conscience was the “guardian of every other right.” By showing an “indifference” to this guaranteed freedom, the Sedition Act was a “mark of reproachful inconsistency and criminal degeneracy.” But he stopped short of calling for nullification. He wished instead for other states to join with Virginia in declaring the acts unconstitutional; they would offer a united front and publicly espouse a common interpretation of the “rights reserved to the States, respectively, or to the people.”75
The point is that Madison’s text was a limited, not a total, endorsement of Jefferson’s principles. He intentionally avoided use of the words null, nullify, or nullification. He substituted the word interpose, which, according to Dr. Johnson’s Dictionary, meant “to mediate, to act between two parties; to put in by way of interruption.” These are gentler terms than what Jefferson opted for, and they opened the door to negotiation. To nullify was to annul—to declare that the government never had this power in the first place.
Madison’s solution was intentionally more ambiguous. He proposed no coherent legal strategy; he did not explain precisely what the states must do to arrest the “evil” before them. He refused to weigh in on the power of an individual state to curb the excesses of federal power, which was so central to Jefferson’s strategy. For Madison, the states—the collective body of the states—would take the appropriate (but unspecified) action.76
Although Madison and Jefferson diverged, several state legislatures failed to draw a distinction between the two sets of resolutions. These states criticized both for advocating “the dangerous doctrine, that the State Governments are the constitutional judges of the Acts or Laws of the Federal Government.” Madison’s subtle word choices did little to quell the larger fear of disunion that was seen in the call to grant states “unwarrantable power” to interpret federal laws.77
After just a few days of debate, both houses in Kentucky passed the resolutions in November 1798. Breckinridge made changes to Jefferson’s draft, dropping the language of nullification. Then the resolutions were forwarded to Kentucky’s two U.S. senators and its two congressmen, who were instructed to work for the repeal of the Alien and Sedition Acts in Congress. Jefferson’s staunchest allies in Kentucky understood that the protest should be aimed at Congress, even if Jefferson intended for Congress to be bypassed and for the state to take matters into its own hands. The Virginia Assembly passed its version of the resolutions on December 21, 1798.78
After all was said and done, not a single state rallied to Virginia’s side. Nine northern states renounced the resolutions, and only one southern state, North Carolina, bothered to respond at all (and still its Senate would not approve the resolutions).79 Changing the debate, “Peter Porcupine” lashed out at the Virginians for their hypocrisy in claiming to be “actuated by a love of liberty” when they “live on the sweat of slaves.” A Connecticut critic brought up Jefferson’s history of slinking away from manly engagement by calling the resolutions “cowards huffs,” empty threats spun by the “insidious sophistry of the Mazzei tribe of philosophers.” Since the Virginia Resolutions were followed by a bill for arming the state’s militia, some accused Richmond of preparing to use the threat of military force to intimidate other states. Madison’s and Jefferson’s enemies flatly declared the “Ancient Dominion” to be in opposition to the Union.80
“A Foreign Poison Vitiating the American Sentiment”
Rather than help the Republicans’ cause, the Kentucky and Virginia Resolutions served only to stiffen the Federalists’ resolve. Fisher Ames of Massachusetts assailed Madison’s surrogate for the Virginia Resolutions, John Taylor of Caroline: “Virginia, excited by crazy Taylor, is fulminating its manifesto against the federal government.” Former president Washington was so disturbed that he appealed to Patrick Henry to reenter politics in order to turn back the tide. In a letter marked “confidential,” he bemoaned “the endeavors of a certain party among us, to disquiet the Public mind with unfounded alarms.” No longer even mentioning the names of former intimates Madison and Jefferson, he expressed regret that Virginia had “taken the lead” in protesting “every act of the Administration.”
Like the most inveterate of Federalist propagandists, Washington accused those whom he would not name but called generically “this Party” of preferring “the interest of France to the Welfare of their own Country.” Pages into his anguished letter to Henry, the “First of Men” brought his list of charges to an end and opened a new paragraph: “I come now, my good Sir, to the object of my letter—which is—to express a hope, and an earnest wish, that you wd come forward at the ensuing Elections (if not for Congress, which you may think would take you too long from home) as a candidate for representation, in the General Assembly of this Commonwealth.” He flattered Henry: “Your weight of character and influence … would be a bulwark against … dangerous Sentiments.”81
Henry, so long out of government, could not say no to George Washington. He refused to stand for Congress, given his declining—what he called “very indifferent”—health, but he did agree to serve in the Virginia Assembly. He despised the Republicans as much as Washington did for the disrespect they had shown to the government, but as a devout Christian, he cast his fears in religious language. “The Foundations of our Morality and Government” had been sacrificed to “French principles,” Henry said, because “those who nickname themselves ‘Democrats’ ” were turning their backs on “Truths which concern our Happiness in the World to come, alike with our Happiness in this.”82
Many others would launch public attacks on Jefferson and the Republicans for their dangerous critique of religion, but the well-developed network of Republican papers fought back. “The spirit of party has converted the elegant reasoning of Mr. Jefferson against religious establishments into a blasphemous argument against religion itself,” wrote one supporter in the Baltimore Telegraph, an opinion picked up by newspapers in other parts of the country. And the Bee, of New London, Connecticut, proclaimed: “How ridiculous and contemptible do our newspaper scribblers of the present day appear in their endeavours to detract from the literary and moral character of Mr. Jefferson!”83
The Alien and Sedition Acts complicated life for Federalists much as the Terror had complicated life for Republicans a few years before. John Marshall, a favorite of Washington’s, claimed that he would have voted against the Alien and Sedition Acts though they were constitutionally sound; he authored a pamphlet on the subject. Washington had urged Marshall (in addition to Henry) to run for Congress and now had to be disabused of his belief that Marshall had adopted, undiluted, the High Federalist creed. Like President Adams, John Marshall did his own thinking.
Writing from Philadelphia, Adams explained to his predecessor why he had decided on a new approach to the French. Talleyrand himself had assured him that a decent reception awaited his next envoy. This did not prevent Adams from launching into a rant about the Republicans for having urged good Franco-American relations all along: “I wish the babyish and womanly blubbering for Peace may not necessitate the Conclusion of a Treaty that shall not be just nor very honourable.” Also from Philadelphia, two days later, Secretary of State Pickering wrote Washington of the Hamiltonians’ annoyance with Adams for agreeing to take up diplomacy with the despicable French. “
The Jacobins alone are pleased,” Pickering alleged. “The honor of the country is prostrated in the dust.”84
Wading into the brawl in which his political offspring were engaged, an honored elder urged reason and forbearance. In his Address of the Honorable Edmund Pendleton of Virginia to the American Citizens, on the State of Our Country, published in Federalist Boston, the old Revolutionary pointed out how futile it was for the United States to engage in provocation with France when France was sending signals that its demand was for nothing more than “placing our commerce with Britain and France on the same footing.” He dismissed the notion that there was somehow a “French party” in America, and he explained that no Republican wanted any connection with France more “intimate” than the quality of the relationship America enjoyed under the 1778 treaty through which the French proved themselves willing to fight for American independence. Pendleton defended Jefferson, not by name but as “the gentleman who is honoured by being placed at the head of this supposed party,” and pleaded with a divided people to take a breath and look for peaceful, constitutional remedies for the nation’s domestic ailments. As he had been in 1775, Pendleton attempted to be in 1799: the cooler head that he hoped would prevail. What he did not say in his address was that Jefferson had explicitly asked him to write something that would have the effect of “exposing the dupery being practised” on the American people by a cynical government. “Nobody in America can do it so well as yourself,” Jefferson had coaxed.85
The year 1799 saw a continuation of confrontational politics. In January and February Madison decided to go after the malefactors. Twice he wrote surreptitiously for the Aurora, using the signatures “Enemy to Foreign Influence” and “A Citizen of the United States.” In the first, he used an uninhibited metaphor—“the most jealous lover never guarded an inconstant mistress with a more watchful eye”—to complain about Britain’s “rigid and compulsive monopoly” over transatlantic trade, dating to the colonial period. “But the most powerful, perhaps, of all her motives,” Madison charged, “is her hatred and fear of the republican example of our governments.” He updated the old imagery of Tory perversion, warning that trade and profit had been concentrated in the hands of merchants who were bound to British capital and credit: “Thus it is,” he wrote spectacularly, “that our country is penetrated to its remotest corners with a foreign poison vitiating the American sentiment, recolonizing the American character.” This piece of polemic may be the most eloquent single line Madison ever wrote. He did not take, and has never received, credit for it.
In the second of his Aurora essays, Madison tried to reason his way through the generally distasteful course of the French Revolution. Demonstrating his caustic wit, he explained that it was not unusual for governments in the process of consolidating power to cultivate fear among the populace, mixing real threats with “jealousies, discontents, and murmurs.” Subversion of public opinion was, he wrote sharply, a tactic to which the United States was no more immune than the French Republic.86
Jefferson saw and approved the essays before they were printed, and he visited Madison in early March as he traveled south from Philadelphia. In the early years of the republic, Congress might be out of session for entire seasons, and in 1799 Vice President Jefferson remained at home from March until mid-December.87 After his late-winter stopover in Orange, there is a mystifying six-month gap in the Madison-Jefferson correspondence, due perhaps to both men’s apprehensions about the security of their communications. It is likely that messages were conveyed through private messengers and not retained.
In April 1799, a month into this epistolary drought, John Taylor and others expressed to Madison their concern about Patrick Henry’s return to politics. They convinced Madison to serve once again in the House of Delegates as a foil to the seductive orator, who rarely did as expected and who now supported the repressive Alien and Sedition Acts. But the drama never played out. On June 6, before the state legislature had even met, Henry died.88
In August, from Monticello, Jefferson reopened his correspondence with Madison. Dolley was in Jefferson’s neighborhood at the time and could, without harassment, carry home a letter containing dangerous sentiments. The letter of August 23 was arguably the most radical that Jefferson ever wrote to Madison or to anyone else. It envisioned conditions under which he would be willing to sanction the dissolution of the Union. In Jefferson’s estimation, the resolutions he and Madison had authored for the states to consider were good, but not good enough. Kentucky and Virginia had not sparked the kind of outcry he had hoped for; he wanted now to reexamine what might be done in a worse instance, if the states too easily acquiesced after the federal government clamped down on them, “disregarding the limitations of the federal compact.”
His prescription was dire. He seemed to strain to get the words out, and when he did, he could not find an effortless way to finish the opinion. Express in “affectionate and conciliatory language,” he proposed, “our warm attachment to union with our sister-states …, that we are willing to sacrifice to this every thing except those rights of self government the securing of which was the object of that compact: that not at all disposed to make every measure of error or wrong a cause of scission, we are willing to view with indulgence and [to] wait with patience till those passions and delusions shall have passed over which the federal government have artfully and successfully excited to cover it’s own abuses and to conceal it’s designs.” Jefferson was writing a new, less beautiful declaration of independence—or declaration of divorce. “But determined,” he plodded on, “were we to be disappointed in this, to sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved, and in which alone we see liberty, safety and happiness.” And then he added bizarrely: “These things I sketch hastily.”89
Madison did not go to his desk and compose a systematic reply. He rode to Monticello instead, where they conferred face-to-face. Jefferson rethought what he had written and agreed with Madison that disuniting was a faulty prescription for present—or future—political ills. It was a rare instance of Jefferson’s reversing himself. But as he explained to Wilson Cary Nicholas of Albemarle County, his close ally in the state legislature, Madison had not needed to argue to convince him. He realized on his own that he had momentarily gone astray.
As the year wore on, Madison and Jefferson did not even have the luxury of paying visits to each other at will. The reason was not just the insecurity of the postal service, where seals and handwriting were recognized, and letters were purloined and their contents fed to unprincipled newspaper editors. This time Monroe took the initiative, cautioning Jefferson and Madison to avoid being seen together. In a place with few country roads and little anonymity, it was hard to hide comings and goings. It would not take much for them to stand accused of brewing conspiracies. Jefferson agreed with Monroe’s logic.90
Madison, Jefferson, and Monroe were more a triumvirate now than they had been at any time past. The Monroes were spending more and more time on the Albemarle property.91 In a heavily Republican House of Delegates, late in 1799, Madison proposed Monroe for the governorship of Virginia. His activities in France earlier in the decade had annoyed Washington while greatly pleasing most of the rest of Virginia. As a result, Monroe won the governor’s job by a significant margin over the Federalist candidate. The Virginians were on the move again. Stymied by Federalist gains in the last few years, they were buoyed now by confusion in the Federalist ranks, after President Adams rebelled against his cabinet and restored balance in foreign affairs. Virginia was eager to reclaim its accustomed rank among the states.
“Death Has Robbed Our Country”
The new century drew near. And as it did, the Revolutionary generation bade farewell to two senior Virginians. Six months after the loss of the daring, erratic Patrick Henry, George Washington died at Mount Vernon on December 14, 1799, at the age of sixty-seven. Had he lived a few more months, he would have had his immediate
successor as a neighbor, when the Adamses moved from Philadelphia to the new Federal City on the Potomac.
Before he died, Washington was able to resume a correspondence with the youngest general in his Continental Army. Despite his long confinement, Lafayette had emerged from prison with as dynamic a commitment to American-style liberty as he possessed before his ordeal began. He loved the Americans and vowed to return to the United States for a long visit. Washington discouraged him from coming, citing the “present political agitation,” but Lafayette, as stubborn as he was affectionate, still planned to sail, saying that he wished to enjoy moments of seclusion at Mount Vernon with his treasured friend. In truth, Washington feared that Lafayette was too close in sentiments to the Republicans, or could be manipulated by them. Lafayette did not accept “no” easily. “I long to be in America,” he cooed.
No one else addressed Washington with the fervor of Lafayette. “I know you long to fold me to your paternal heart,” he pressed. In the last letter of his that Washington would ever read, Lafayette acknowledged his ambition to play a role in negotiating an improvement in Franco-American relations. To an American diplomat at The Hague, he suggested that the unique understanding he shared with lead participants in the American Revolution might be enough to bring peace to the warring factions, Federalist and Republican.92
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