If this were all, some explanation of the President's silence might be offered; for in 1801-1802 his majority in the Senate was small, and only a political leader as bold as Andrew Jackson would have dared to risk his popularity on such a venture. The judges held office for life; the Constitution required for amendment two thirds of the Senate and three fourths of the States; any violent shock might have thrown Connecticut and Massachusetts into open secession; but these objections to a revolution in constitutional law did not apply to partisan Federalist legislation. Why did not Jefferson officially invite Congress to confirm the action of Virginia and Kentucky by declaring the Alien and Sedition Laws to be unconstitutional and null as legislative precedents? In the absence of such a declaratory act, the Republican party left on the statute book the precedent established by those laws, which had expired only by limitation. Had the Alien and Sedition Laws been alone in dispute, the negligence might have seemed accidental; but the statute-book contained another Federalist law, aimed against States-rights, which had roused alarm on that account. The Judiciary Act of 1789, the triumph of Federalist centralization, had conferred on the Supreme Court jurisdiction over the final judgment of State courts in cases where the powers of the general government had been "drawn in question" and the decision was unfavorable to them. This concession of power to the Supreme Court,—a concession often alleged to be more dangerous to the States than the "necessary and proper" clause itself,—was believed to be dictated by a wish to make the State judiciaries inferior courts of the central government, because the powers of the general government might be "drawn in question" in many ways and on many occasions, and thus the authority of the State courts made contemptible. Chief-Justice Marshall achieved one of his greatest triumphs by causing Judge Story, a republican raised to the bench in 1811 for the purpose of contesting his authority, to pronounce in 1816 the opinion of the court in the case of Martin vs. Hunter's Lessee, by which the Virginia Court of Appeals was overruled upon the question of constitutionality raised by the State court in regard to Section 25 of the Judiciary Act. Such a result would hardly have happened had the Republicans in 1801 revised the laws which they considered unconstitutional; but with what propriety could Virginia in 1816 assert the unconstitionality of a law which she had for fifteen years possessed the power to repeal, without making an attempt or expressing a wish to exercise it?
Whatever was the true cause of the inaction, it was certainly intentional. President Jefferson wished to overthrow the Federalists and annihilate the last opposition before attempting radical reforms. Confident that States-rights were safe in his hands, he saw no occasion to alarm the people with legislation directed against past rather than future dangers. His party acquiesced, but not without misgivings. John Taylor of Caroline, most consistent of the States-rights school, thought that reforms should have been made. John Randolph, eight years afterward, expressed his opinion with characteristic frankness:—
"You know very well," he said,8 addressing Speaker Varnum, "that there were many of us, and I was one, who thought that at the commencement of Mr. Jefferson's administration it would be proper for us to pass a sort of declaratory Act on the subject of the Sedition Law; . . . but on this subject, as well as the reduction of the army below its then standard, as on some others, I had the honor, or dishonor as some might esteem it, to be in the minority. I had thought that we ought to have returned the fines of all those who suffered under the law; . . . but you know that it was said that we came in as reformers; that we should not do too much; that we should go on little by little; that we should fire minute-guns, I think was the expression,—which produced no other effect, that I ever found, than the keeping up a spirit of irritation."
Speaker Macon, Joseph Nicholson, and William B. Giles were probably among those who held the same opinion, and were overruled by the Northern democrats. They never quite forgave Madison, to whose semi-Federalist influence they ascribed all Jefferson's sins. Distrust of Madison was natural, for neither Virginian nor New Englander understood how Madison framed the Constitution and wrote the "Federalist" with the same hand which drafted the Virginia Resolutions of 1798; but Jefferson himself would have been last to admit the correctness of such an explanation. He could point to the sentence of his Inaugural Address which pledged him to "the preservation of the general government in its whole constitutional vigor." If in redeeming the pledge he preserved vigor that his friends deemed unconstitutional, his own habits of mind, not Madison's semi-Federalist tendencies, explained the error.
Another reason partly accounted for the President's silence. In theory the Executive received its instructions from the Legislature. Upon no point had the Republican party, when in opposition, laid more stress than on the necessity of reducing Executive influence. President Washington's personal authority, even more than the supposed monarchical tendencies of his successor, inspired anger, if not terror, in the minds of his opponents. Jefferson wished to avoid this error, and to restore the true constitutional theory to its place in practice. His recommendations were studiously restrained, and the Federalists were so far silenced that they could only say with Chief-Justice Marshall, "By weakening the office of President, he will increase his personal power." The concluding sentences of the Message expressed in a few words the two leading ideas which Jefferson wished most to impress on the people,—his abnegation of power and his wish for harmony:—
"Nothing shall be wanting on my part to inform, as far as in my power, the legislative judgment, nor to carry that judgment into faithful execution. The prudence and temperance of your discussions will promote, within your own walls, that conciliation which so much befriends rational conclusion, and by its example will encourage among our constituents that progress of opinion which is tending to unite them in object and in will. That all should be satisfied with any one order of things is not to be expected, but I indulge the pleasing persuasion that the great body of our citizens will cordially concur in honest and disinterested efforts, which have for their object to preserve the General and State governments in their constitutional form and equilibrium; to maintain peace abroad, and order and obedience to the laws at home; to establish principles and practices of administration favorable to the security of liberty and property, and to reduce expenses to what is necessary for the useful purposes of government."
1 Annals of Congress, May 26, 1809, XI. Congress, Part I. p. 92.
2 Letter to the President of the Senate, Dec. 8, 1801.
3 Gallatin to Jefferson, Aug. 16, 1802; Works, i. 88.
4 Gallatin to Jefferson, Sept. 12, 1805; Works, i. 253.
5 Jefferson to J. Dickinson, Dec. 19, 1801; Works, iv. 424.