James Madison Papers

Note on the Virginia Resolutions, 10 January, and the Address of the General Assembly to the People of the Commonwealth of Virginia, 23 January 1799 (Editorial Note)

Note on the Virginia Resolutions, 10 January 1799, and
the Address of the General Assembly to the People of
the Commonwealth of Virginia, 23 January 1799

Editorial Note

Few editors and scholars would question that the drafting of the Virginia Resolutions was JM’s most important contribution to the proceedings of the 1798–99 session of the Virginia General Assembly. Earlier generations of editors have maintained, however, that JM was responsible not only for the resolutions of 21 December 1798 but also for three resolutions criticizing the foreign policy of the Adams administration that were approved by the General Assembly on 10 January 1799; and more importantly they have claimed that he wrote another attack on the Alien and Sedition Acts in the form of the “Address of the General Assembly to the People of the Commonwealth of Virginia” of 23 January 1799 as well. Both the compilers of the congressional edition and Gaillard Hunt included these last two documents in their canons of JM’s papers, and several of JM’s biographers, from John Quincy Adams to Irving Brant, have concurred with this attribution, at least to the extent of asserting that the “Address” of 23 January 1799 was the product of JM’s pen (Madison, Letters [Cong. ed.] description begins [William C. Rives and Philip R. Fendall, eds.], Letters and Other Writings of James Madison (published by order of Congress; 4 vols.; Philadelphia, 1865). description ends , 4:508–14; Madison, Writings [Hunted.], 6:331–40; John Quincy Adams, An Eulogy on the Life and Character of James Madison, Fourth President of the United States; Delivered at the Request of the Mayor, Alderman, and Common Council of the City of Boston, September 27, 1836 [Boston, 1836], p. 57, later republished as The Lives of James Madison and James Monroe [Buffalo, 1850], see p. 70; Brant, Madison description begins Irving Brant, James Madison (6 vols.; Indianapolis and New York, 1941–61). description ends , 3:464).

The present editors do not believe that JM composed these last two documents, and for that reason they have decided to exclude them from this edition of his papers. This decision was not taken lightly, nor without an awareness of its significance for the body of important scholarship that exists in relation to the contents of these two documents, particularly the “Address” of 23 January 1799. If JM did not write this last document, historians will have to reconsider some aspects of the lengthy and complicated debate about the development of thinking on the freedom of the press in the United States, especially with respect to the claim that JM changed his views markedly on this subject between January and December 1799. The author of the “Address” of 23 January 1799 denied that the federal government could institute prosecutions for seditious libel, but at the same time he explicitly left open the possibility of punishing “libellous writing or expression” in state courts by “juries summoned by an officer, who does not receive his appointment from the President.” The power of state courts over matters of seditious libel, however, was denied by JM barely twelve months later when he wrote his Report of 1800 on the Virginia Resolutions, a document that has become justly celebrated as one of the most important expositions of the meaning of the freedom of the press clause in the First Amendment (Madison, Letters [Cong. ed.] description begins [William C. Rives and Philip R. Fendall, eds.], Letters and Other Writings of James Madison (published by order of Congress; 4 vols.; Philadelphia, 1865). description ends , 4:150; see Walter Berns, “Freedom of the Press and the Alien and Sedition Laws: A Reappraisal,” in 1970: The Supreme Court Review [Chicago, 1970], ed. Philip B. Kurland, pp. 129–30; Levy, Emergence of a Free Press, pp. 319–26; Jeffrey A. Smith, Printers and Press Freedom: The Ideology of Early American Journalism [New York, 1988], pp. 71–73).

It is, unfortunately, not possible to address and resolve all these significant issues in an edition of JM’s papers. As it is, little enough is known about JM’s activities at this time, and historians do not understand a great deal more about the proceedings in the Virginia General Assembly as it ratified these two documents of protest in January 1799. The shreds of information that are available, however, cannot be adduced to support the contention that JM was responsible for either of them. In this context, it should be stressed above all else that there exists no good contemporary evidence of any sort, direct or circumstantial, to substantiate the claim that JM had either composed the two documents in question or contributed in any way to their adoption by the General Assembly.

The precise origins of the three resolutions on foreign policy are obscure, but the identity of their legislative sponsor is not: it was Wilson Cary Nicholas. The resolutions were introduced in the House of Delegates on 17 December 1798, were approved by that body on 4 January 1799, and then received the assent of the Senate six days later. During the debate on their adoption in the House of Delegates on 4 January, George Keith Taylor proposed amendments to them in the form of a counterresolution in six parts that, in effect, would have endorsed the policies of the Adams administration while also condemning those of France. No accounts of the debate have been located, but Taylor’s amendments failed by a margin of twenty-nine votes. The House then proceeded to adopt the resolutions as originally introduced by Nicholas (JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia, Begun and Held at the Capitol, in the City of Richmond. Volumes in this series are designated by the month in which the session began. description ends , Dec. 1798 [Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 36642], pp. 26, 58–59; Richmond Examiner, 18 Jan. 1799).

The story of the “Address” of 23 January is scarcely any better understood. What appears to be an early undated version survives in the papers of Wilson Cary Nicholas. This version is certainly not in the hand of either JM or Wilson Cary Nicholas, nor is it in the hand of John Taylor of Caroline or any other Virginia political leader whose handwriting might be positively identified by the editors. It is possible, however, that the document is in the hand of a copyist, and Wilson Cary Nicholas, whose handwriting could have been no more legible to his contemporaries than it is to us today, does seem to have used a copyist from time to time. Furthermore, draft notes in his papers suggest that Nicholas played a very considerable role at this time in shaping the Republican critique of the policies of the Adams administration, and he certainly gathered enough material to have composed the document that may be a first draft of the “Address” of 23 January 1799. However, at some time before the “Address” was introduced in the House of Delegates by John Taylor of Caroline on 15 January 1799, it was very substantially rewritten. A comparison of the two documents leaves no doubt that the first of them did have some influence on the contents of the second. Despite the extensive rewriting that occurred, several key sentences from the draft in the Nicholas Papers were incorporated into the text introduced in the House of Delegates on 15 January, and the overall organization and argument of the two pieces is fundamentally the same. The version of 15 January was then debated in the Committee of the Whole of the House of Delegates and duly reported back with some amendments on 22 January. The House adopted the amended version that same day, and the Senate added its assent to the final address on 23 January (“The address of the general assembly, to the people of the Commonwealth, of Virginia” [DLC: Wilson Cary Nicholas Papers]; JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia, Begun and Held at the Capitol, in the City of Richmond. Volumes in this series are designated by the month in which the session began. description ends , Dec. 1798 [Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 36642], pp. 78–80, 88–90, 96; Richmond Examiner, 18 Jan. 1799).

Again, it should be stressed that no reliable contemporary evidence has come to light to link JM with either the draft of the “Address” in the Nicholas Papers or the two revised versions that were debated in the General Assembly. And considering the fact that JM had left the Richmond area to return to Montpelier sometime in the second week of December 1798, it would have been difficult, if not impossible, for him to have had any influence on the final shaping of the “Address” during the course of the legislative debates. As it was, JM was complaining by the end of December that he had not yet heard the results of the discussions at Richmond on the Alien and Sedition Laws, and it is unlikely that this remark meant anything more than the fact that he was waiting for news about the fate of those resolutions that had already been introduced in the House of Delegates by John Taylor of Caroline on 10 December 1798. It is, of course, by no means implausible to suggest that JM, Wilson Cary Nicholas, and John Taylor of Caroline had informally reached some sort of agreement that JM’s resolutions should be supplemented by a more strongly worded appeal to the public, that Wilson Cary Nicholas had initially taken on the assignment, and that John Taylor then took it over, perhaps because Nicholas may have had a heavy burden of committee work during the House session. This suggestion, however, is pure speculation, and the most that can be safely said is that Nicholas continued to maintain an interest in the fate of the “Address,” even after John Taylor had introduced it in the House of Delegates. There survives among his manuscripts a newspaper printing of the version of 15 January, which Nicholas evidently edited to incorporate the amendments that were made to this version when it was adopted by the House of Delegates one week later (JM to Monroe, 11 Dec. 1798; JM to Jefferson, 29 Dec. 1798; Richmond Examiner, 18 Jan. 1799, marked copy [DLC: Wilson Cary Nicholas Papers]).

In short, the fragments of surviving evidence about the “Address” link it more closely to other Virginia politicians than to JM. And JM himself later in life, while admitting to the authorship of the Virginia Resolutions of 1798, never claimed the “Address” as his own. As his letters to Edward Everett in August 1830 reveal, JM approved of the content of the “Address” insofar as it provided evidence that the Virginia protest of 1798 did not furnish a historical sanction for the doctrines of nullification which were being propounded by John Caldwell Calhoun and others after 1828. But JM seems to have been careful to say no more than this, and he may even have intended to distance himself from the document in other respects. In his additional comments to Everett about the “Address,” he merely described it as an expression of the views of the legislature “to their constituents” after the 1798–99 session, adding the qualification that “I was not a member in that year, though the penman of the Resolutions, as now supposed” (JM to Edward Everett, 20 and 28 Aug. 1830, Madison, Writings [Hunt ed.] description begins Gaillard Hunt, ed., The Writings of James Madison (9 vols.; New York, 1900–1910). description ends , 9:394–95 n., 401–2).

If JM, then, never took credit for composing the “Address,” the question necessarily arises as to how it, along with the Virginia Resolutions of 10 January 1799, ever came to be included in the second edition of his writings, published by the authority of Congress in 1865. This story, to the extent that it can now be reconstructed, forms an interesting episode in the annals of early American historical editing. The principal editor of the 1865 congressional edition of JM’s writings, William Cabell Rives, was not responsible for the decision to include the “Address” in this publication. This much is clear from the report Rives made to the Joint Committee of Congress on the Library of Congress in February 1860. That committee had entrusted Rives in 1856 with the task of editing the residue of JM’s papers, which had been purchased by the federal government from Dolley Madison in 1848. On completing his assignment, Rives delivered to the Joint Committee twenty-two parcels of material copied from these Madison manuscripts, and he seems to have envisaged that their publication would require four volumes. Rives also suggested to the Joint Committee that it augment the volumes by the inclusion of some other writings by JM which he recommended “both for their intrinsic excellence & the difficulty of access to them in the dispersed repositories in which alone they are now to be found.” His list included JM’s memorandums on his relations with Robert Smith and John Armstrong, the allegory “Jonathan Bull and Mary Bull,” the National Gazette essays of 1791–92, the letters of “Helvidius,” the Political Observations, the 1805 treatise on neutral rights, and the address of 1818 to the Albemarle Agricultural Society. Significant by its absence from this listing is any material relating to JM’s involvement in the Virginia protests of 1798 to 1800 (Rives to James A. Pearce, 11 Feb. 1860 [DLC: William Cabell Rives Papers, box 91]).

It is possible, of course, that Rives thought JM’s role in writing the Virginia Resolutions of 1798 and the Report of 1800 was sufficiently well known to the generation of the 1850s to justify his decision to omit them from a new edition of JM’s papers. Another possibility, considering Rives’s involvement in the politics of the Constitutional Union party at the time he was preparing his texts for the press, is that the omission was a significant comment on the nature of the Madisonian historical legacy that the editor wished to bequeath to posterity. But whatever the explanation, at this point the Civil War intervened, and Rives subsequently lost any control or influence he might otherwise have continued to exercise over the final stages of publishing JM’s manuscripts. His place was taken by Philip R. Fendall, a Washington attorney and former secretary of the American Colonization Society, whom the Joint Committee had originally engaged sometime over the winter of 1859–60 to proofread and to compile the index for the congressional edition ([Philip R. Fendall], “Memo: Concg. Madison’s Letters &c.” [DLC: Rives Papers, box 102]).

Fendall did not find his assignment an easy one. The Librarian of Congress, John Silva Meehan, after a “slight examination” of Rives’s texts, concluded that JM’s writings were not yet “fully prepared for the press,” and with the absence of Rives himself in Virginia after 1861, Fendall suddenly found his duties greatly expanded beyond those that had been originally contemplated. Apart from having to remedy any defects in Rives’s work—a difficult matter, since Rives kept JM’s original manuscripts on his plantation during the Civil War—and having to cope as well with serious difficulties involving the original printer for the papers, Fendall had to labor hard to locate the texts required for the inclusion of the supplementary material recommended by Rives. And as he did so he felt sensibly, as he complained to Nicholas P. Trist, “the want of occasional access to some intelligent friend of Mr. Madison’s, familiar with our political history” (John S. Meehan to James A. Pearce, 6 July 1860 [DLC: Records of the Library of Congress, Librarian’s Letter-books]; [Fendall], “Memo: Concg. Madison’s Letters &c.,” entries for 10 Aug. and 14 Oct. 1861 [DLC: Rives Papers, box 102]; Fendall to Trist, 31 July 1862 [DLC: Nicholas P. Trist Papers]).

Another difficult problem was the discovery, apparently made by May 1862, that the material edited by Rives, even with the inclusion of the additional publications he had suggested, was insufficient to make four volumes of roughly equal length. As Fendall later recalled, “without more matter, the 4th. vol. would be much thinner than the rest,” and he accordingly recommended to the Joint Committee on 4 May 1862 that there should be some “additions” to an appendix in the final volume. Shortly thereafter, Fendall attended a meeting of the Joint Committee to make “explanations of the ‘suggestions’” for the additional material, and three days later the Joint Committee gave its approval to his selections. The list of Fendall’s suggested additions has not been found, but Fendall himself later informed Rives that they included “the Instructions prepared by Mr. Madison in 1780, to Dr. Franklin and Mr. Jay…; the address of Congress to the States in 1783…; the Virginia Resolutions & Report of 1798–99, so often the subject of exposition in the body of the collection, and in one instance of an elaborate defence against erroneous inferences which had been drawn from them; several letters to Mr. Clay from Colton’s books; valedictory of Virginia Legislature in 1817; Letter to Niles on the Misspi. question 1822; &c. &c.” In short, Fendall was responsible for compiling almost all of the second appendix, amounting to 128 pages of material, in the congressional edition of JM’s papers; and in this manner and at this time both the Virginia Resolutions of 10 January 1799 and the “Address” of 23 January 1799 entered the canon of JM’s writings ([Fendall], “Memo: Concg. Madison’s Letters &c.,” entry for 4 May 1862; John G. Stephenson to Fendall, 7 May 1862 [DLC: Records of the Library of Congress, Librarian’s Letterbooks]; [Fendall] to Rives, 27 Nov. 1865 [CtY]).

Why Fendall concluded JM had written these two documents may never be fully understood, but it is possible to offer some plausible conjectures. Although he had corresponded with JM on American Colonization Society business after 1833, it seems unlikely that Fendall could lay claim to any extensive knowledge of JM’s career, and, as has already been noted, he felt his understanding of the nation’s political history was inadequate for the requirements of his task. Since many of his difficulties in completing the publication of JM’s papers concerned access to reliable texts and accurate historical information, it is more than likely that Fendall’s editorial decision with respect to the inclusion of material relating to JM’s role in the Virginia protests of 1798–1800 was governed by the nature of the textual and historical evidence available to him. Here it might be surmised that Fendall, in selecting his texts for the Virginia Resolutions of 1798 and the Report of 1800, either relied on or was influenced by the reprintings and the interpretations of this material made by various editors, publishers, and politicians during the 1830s.

One of the most active publishers at that time of JM’s writings from the late 1790s was Jonathan Elliot, who published in 1832 a substantial pamphlet containing the Virginia and Kentucky Resolutions, together with “Madison’s Report, Calhoun’s Address, Resolutions of the Several States in Relation to States Rights, With Other Documents in Support of the Jeffersonian Doctrines of ’98.” Among the “other documents” was the “Address” of 23 January 1799, described in this context by Elliot as the paper which “accompanied the foregoing [Virginia] Resolutions … as drawn by James Madison.” Admittedly, Elliot did not directly identify JM as the author of the “Address,” but his authority for linking it with JM’s resolutions in the manner that he did may have derived from a conversation he had in 1830 with Nicholas P. Trist, who told him, in response to a request “for information concerning the authorship of the Virginia documents,” that they were “doubtless” from the pen of JM. Elliot also included this same material as part of the series of historical commentaries that embellished the multiple editions of his Debates in the Several State Conventions, on the Adoption of the Federal Constitution. He was, though, by no means the only journalist or editor to reproduce the “Address” of January 1799 in a context that was, at least, suggestive of JM’s authorship, and given the widespread confusion and misunderstanding that existed in the 1830s about the exact nature of JM’s role in the Kentucky and Virginia protests of the late 1790s, it seems likely that many readers of this historical material simply took it for granted that JM had written all the major documents issuing from the Virginia General Assembly between 1798 and 1800 (The Virginia and Kentucky Resolutions of 1798 and ’99 with Jefferson’s Original Draughts Thereof. Also Madison’s Report … [Washington, 1832], pp. 5–9; Trist to JM, 21 Sept. 1830 [ViHi: Nicholas P. Trist Papers]; Elliot, Debates [1836 ed.], 4:544–58; Niles’ Weekly Register, 43 [1832–33]: supplement, pp. 1–2).

One reader of this material who did draw from it the conclusion that JM was the author of the “Address” of 23 January 1799 was John Quincy Adams. In order to prepare a eulogy on JM shortly after his death in the summer of 1836, Adams obtained access to the letters and pamphlets JM had exchanged with Edward Everett during the 1820s and 1830s, many of which had dealt with both the Virginia and Kentucky protests of the 1790s and the related matter of the historical origins of nullification. Because Adams had no particular wish to depict JM, as opposed to Jefferson, as the father of nullification, he was evidently so impressed by JM’s citation of the “Address” in his correspondence with Everett as proof that neither he nor the Virginia General Assembly had intended to establish the doctrine of nullification in 1798 that he explicitly stated in his eulogy that JM had written the “address to the people” in support of his own Virginia Resolutions. And since Fendall indicated to Trist in 1862 that he had consulted Adams’s eulogy, among other authorities, in preparing his appendix to JM’s papers, it seems safe to suppose that he either came to the same conclusion as Adams about the authorship of the “Address” or was led by the authority of the eulogy itself to decide that the “Address” should be included in the congressional edition (Edward Everett to John Quincy Adams, 13, 17, and 19 Sept. 1836, Adams Papers [MHi microfilm ed.], reel 238; Adams to Everett, 10 Oct. 1836, ibid., reel 237; Adams, An Eulogy on the Life and Character of James Madison, p. 57; Fendall to Trist, 31 July 1862 [DLC: Nicholas P. Trist Papers]).

All this circumstantial evidence, combined with the absence of any other information to link JM directly to the Virginia Resolutions and the “Address” of January 1799, would appear to support the view that JM probably did not compose these two documents. That probability is further strengthened by a closer examination of the “Address” of 23 January 1799 in order to compare some of its stylistic features with what is already known about certain aspects of JM’s own writing style. For practical reasons it is not yet possible for the editors to undertake a full-scale stylometric analysis of all JM’s writings, nor would it be useful here for them to submit the relatively few sentences of the Virginia Resolutions of 10 January 1799 to any such analysis, but it is worth noting in this context that an elementary study of the “Address” of 23 January 1799 fails to yield results that are consistent with the evidence contained in the only available stylometric examination of JM’s written output.

In their classic study Inference and Disputed Authorship: The Federalist, Frederick Mosteller and David L. Wallace performed a number of calculations on word distributions in the writings of JM and Alexander Hamilton in order to see if any patterns emerged to differentiate the two writers and thus facilitate the effort to settle the authorship of the disputed Federalist papers. Their calculations included the use of function or filler words, such as by, from, upon, there, and must, all of which are employed by writers in ways that, presumably, are not greatly influenced by the context of the writing itself. Mosteller and Wallace found that it was indeed possible to distinguish between the styles of JM and Hamilton on the basis of their use of these function words, and to enlarge their sample of JM’s writings for their purposes, they also made calculations of JM’s use rate of such words in a sample of his works containing 113,600 words drawn from the quarter century of his life between 1780 and 1805. As an additional measure of control here, the editors also measured JM’s use rate of these function words in his Report of 1800 on the Virginia Resolutions—a document not analyzed by Mosteller and Wallace—in order to establish that JM’s use of these words had remained reasonably constant in his writings between 1787 and 1800. The resulting figures do not suggest, in the absence of any evidence to the contrary, that the style of the “Address” of 23 January 1799 is that of JM (see Table). For all these reasons therefore the editors have concluded that it is highly unlikely that JM wrote the “Address of the General Assembly to the People of the Commonwealth of Virginia.”

Madison’s Use Rate of Common Function Words per 1,000 Words

Number of Words,
Number of Words,
1799 “Address”
Number of Words,
Report of 1800
Word Rate Rate Rate
any 2.40 0.90 4.16
by 10.29 0   14.22
from 5.65 9.97 4.98
her 2.49 1.81 0  
in 23.11 9.97 21.37
must 2.04 0   2.66
one 2.83 0.90 2.22
some 1.21 0   1.01
there 1.33 0.90 1.26
where 1.93 0.45 0.87
would 3.56 2.72 4.70
upon 0.18 2.72 0.04

Table compiled from data in Mosteller and Wallace, Inference and Disputed Authorship, pp. 19–21.

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