But, at any rate, whatever their reasons, they meant by these laws relating to aliens to put the acquirement of citizenship under more stringent regulations, and to check the growth and promulgation of seditious doctrines. If it be true, as is sometimes maintained with some plausibility, that citizens, to be intrusted with self-government, should be endowed with a certain degree of intelligence and virtue, then the aim of the framers of the laws, in the first case, was a good one; and, in the second case, the country has had some experience in later times which tends to show that they were not altogether wrong in believing that doctrines and practices which may lead to insurrection and civil war might best be met, so far as is possible, at the outset. Nevertheless, the laws, under the circumstances of the time, were ill-considered and injudicious. For one reason, they put an efficient weapon into the hands of the opposition at a moment when it was at a loss where to turn for one. "Anglicism" and "British gold" were blunderbusses which, in the present popular irritation against France, had for a time lost their usefulness, and were apt to miss fire. But an appeal to a generous and impulsive people on behalf of the unfortunate refugees, who had fled from the tyranny of the Old World to find liberty and a home in the New, was sure to be listened to. A good many, besides those who assumed that republicanism and the rights of man were in their special keeping, believed that an unfortunate class had been dealt with hastily, and even cruelly. The clamor, once begun, told heavily against the Federalists. They could be denounced now, not only as the enemies of liberty in France, but as refusing it to men of any nation or any race who should seek it in the United States,—it being, of course, understood that races of black or yellow complexion need not apply. It was, indeed, advanced as an argument against one of the acts,—which gave the President power to order out of the country all aliens whose presence he thought dangerous,—that it might be used to prevent the importation of persons from Africa. On this point Mr. Gallatin, a native of Switzerland, was exceedingly anxious lest there be a violation of the Constitution. But the outrage upon the rights of man here apprehended was the right of white men to make black men slaves.
Against the enactment of these laws Mr. Jefferson did nothing as Vice-President. But whatever was his motive for official inaction, it was not because he approved them. He wrote the Kentucky "resolutions of '98,"—the strongest protest that could be made against them, and to be thenceforth held by nullifiers and secessionists as their covenant of faith. But he acted secretly, taking counsel only with George Nicholas of Kentucky and William C. Nicholas of Virginia (brothers), and, Hildreth says, "probably with Madison." The resolutions were to be offered in the Kentucky legislature by George Nicholas, and, with some modifications, were passed by that body in November. A year afterward other resolutions were passed to reassert the opinions of the previous session, and to record against the laws the "solemn protest" of the legislature; and further declaring "that a nullification by those sovereignties [the States] of all unauthorized acts done under color of that instrument [the Constitution] is the rightful remedy." In the resolutions which Mr. Jefferson had prepared for Nicholas the year before, this essential doctrine is found in that portion which Nicholas had omitted, in these words,—"where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy." As originally prepared, the resolutions were found in Jefferson's handwriting after his death. Hildreth's conjecture that Madison, as well as the brothers Nicholas, was consulted in the preparation of these resolutions, rests only on circumstantial evidence. The Kentucky resolutions were passed in November; those of Virginia in December; the former were written by Jefferson, the latter by Madison; and the doctrines in each are essentially the same. It would have been a perfectly natural thing for the two friends to consult together upon a measure of so much importance; there is no reason why they should not have done so; and these coincidences suggest that they probably did. Jefferson clearly shirked the responsibility of an act which he knew would endanger the Union; but Madison made no secret, so far as can be seen now, of his going to Richmond, though not a member of the Assembly, apparently for the express purpose of writing these resolutions and urging their adoption. But Jefferson was not a man of courage even in doing that which he believed to be wise. In Madison it was only the conscience that was timid; and having once convinced himself that the thing he proposed to do was right, he was always ready to face the consequences. It may be that neither of them foresaw that the real importance of this particular act was rather prospective than immediate; and if so, their conduct is to be measured by its instant purpose. If Jefferson meant then and there to dissolve the Union, or even to weaken the constitutional bond that held it together, he was not overcautious in keeping out of sight. But if Madison's intention was to strengthen the Union by withstanding what he believed to be a perilous violation of the Constitution, then his courage, though it is to be commended, is not to be wondered at. That, he said, was his motive, and to defend the resolutions and his own part in regard to them was the chief interest and serious labor of the latter years of his life. He was elected a member of the Assembly for the session of 1799-1800, probably because he and his friends thought his official presence desirable when the subject should again come up for consideration at the reading of the replies from other States, to all which the resolutions had been sent. The report on those replies was also written by him, and the position taken the year before was therein reaffirmed, explained, and elaborated at length.
In 1827-28 the doctrines of nullification and of secession were assumed to be the legitimate corollary of the Kentucky and Virginia resolutions of 1798 and 1799. Jefferson was dead; but Madison felt called upon to deny, in his own defense and the defense of the memory of his friend, that there was any similarity between them. From 1830 to 1836 his mind seems to have been chiefly occupied with this subject, upon which he wrote many letters, and a paper of thirty pages, entitled "On Nullification," which bears the date of 1835-36, the latter year being the last of his life. He resents the charge of any political inconsistency in the course of his long career, and most of all such an inconsistency as would impugn his attachment to the Constitution and the Union. The resolutions of 1798, he maintains, do not and were not meant to assert a right in any one State to arrest or annul an act of the general government, as that is a right that can only belong to them collectively. Nullification and Secession he denounces as "twin heresies," that "ought to be buried in the same grave." "A political system," he declares, "which does not contain an effective provision for a peaceable decision of all controversies arising within itself would be a government in name only." He asserts that "the essential difference between a free government and governments not free is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them, therefore, can have a greater right to break off from the bargain than the other or others have to hold them to it.... It is high time that the claim to secede at will should be put down by the public opinion." What,—he writes to another friend,—"what can be more preposterous than to say that the States, as united, are in no respect or degree a nation, which implies sovereignty, ... and on the other hand, and at the same time, to say that the States separately are completely nations and sovereigns?... The words of the Constitution are explicit, that the Constitution and laws of the United States shall be supreme over the Constitution and laws of the several States; supreme in their exposition and execution, as well as in their authority. Without a supremacy in these respects, it would be like a scabbard, in the hand of a soldier, without a sword in it." Abraham Lincoln might have said this twenty-eight years later when he determined that his first duty as President was to suppress insurrection.
Such is the drift of the many pages Mr. Madison wrote upon the subject during the last five or six years of his life. He looked then, whatever he may have thought in the closing years of the preceding century, upon the United States as a nation, and not as a confederacy having its parts held together only by "a treaty or league" called a constitution. But his object is to show that there is nothing inconsistent in the resolutions of 1798 with these opinions upon the sovereignty of the United States; that he held them just as strongly then as he held them now; and that they, and he as their author, looked to the States as a whole, not to a single State, to find and apply a remedy, in a constitutional way, for an unconstitutional measure of which an administration of the government might be guilty. His position is maintained with all the acuteness, ingenuity, and logical skill which mark his earlier writings. There is no sign of failure of mental power, of which those accused him who could not answer him. Such an imputation he resented with as much indignation as he did a charge of inconsistency, which here could only mean falsehood. There is no possibility, then, of misunderstanding his opinions during the last six years of his life; and the world has no right to doubt his repeated and earnest assurances that these were his opinions when he wrote the resolutions of 1798. It can only be said that the construction he gave them thirty years afterward is opposed to the universal understanding of them at the time they were written.
But if his defense of himself be considered complete, it is not even specious when presented on behalf of Jefferson. Mr. Madison wrote in 1830: "That the term 'nullification' in the Kentucky resolutions belongs to those of 1799, with which Mr. Jefferson had nothing to do.... The resolutions of 1798, drawn by him, contain neither that nor any equivalent term." It was not then generally known, whether Mr. Madison knew it or not, that one of the resolutions and part of another which Jefferson wrote to be offered in the Kentucky legislature in 1798 were omitted by Mr. Nicholas, and that therein was the assertion already quoted,—"where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy." The next year, when additional resolutions were offered by Mr. Breckenridge, this idea, in similar though not in precisely the same language, was presented in the words, "that a nullification by those sovereignties [the States] of all unauthorized acts, done under color of that instrument, is the rightful remedy." In 1832, this fact, on the authority of Jefferson's grandson and executor, was made public; and, further, that another declaration of Mr. Jefferson's in the resolution not used was an exhortation to the co-States "that each will 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." All this must have been known to Mr. Madison then, if not before. Yet, three years later, in that paper "On Nullification" which has been mentioned, he wrote: "The amount of this modified right of nullification is, that a single State may arrest the operation of a law of the United States.... And this newfangled theory is attempted to be fathered on Mr. Jefferson, the apostle of republicanism." It would be charitable here to believe that there was some lapse of memory in these latter days, and that he had forgotten that Jefferson was, above all things, his own words being witness, the apostle of nullification.
The Alien and Sedition Laws—of which the more obnoxious of the former was never enforced, and the latter expired by limitation in two years—had their influence in the presidential election of 1800. But it was due more to differences between the President and some of the leaders of the Federal party that that party lost its hold upon power, never to be regained. With the election of Jefferson, Madison entered upon another sphere of duty, which was politically a promotion, but where his influence, if it was so large, was not so evident as when an active leader of his party. It was at Mr. Jefferson's "pressing desire," Mr. Madison himself says, in a letter written many years afterward, that he took the office of secretary of state. In the same letter he explains that he had declined an executive appointment under Washington, because, in taking a seat in the House of Representatives, he would be less exposed to the imputation of selfish views in the part he had taken in "the origin and adoption of the Constitution;" because there, if anywhere, he could be of service in sustaining it against its adversaries, especially as it was, "in its progress, encountering trials of a new sort in the formation of new parties attaching adverse constructions to it." The latter reason seems to be one of those happy after-thoughts which public men not unfrequently flatter themselves will anticipate a question they would prefer should not be asked. Mr. Madison was a member of the First Congress from the first day it met, before the new Constitution had encountered new trials from new parties by any constructions either one way or the other.