to consider these as the basis of the Kentucky resolutions, or rather as a lower round of the same ladder.

The paragraph of the Virginia resolutions of most importance for the history of the constitution, is the following:

"Resolved, That this assembly doth emphatically and peremptorily declare, that it views the powers of the federal government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, rights and liberties, appertaining to them."

The legislature of Kentucky disdained to use a mode of expression so vague and feeble or to employ language from which much or little might be gathered as occasion demanded. In the first paragraph of the resolutions of the 10th of November, 1798, we read: "Resolved, . that whenever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

Thus were the "principles" established. But in order that they might not remain a thing floating in the air, it

(6 THE WORD

NULLIFICATION."

147

was necessary to provide another formula, by which the states might be empowered to enforce the rights claimed, or at least to find a word which would presumably embody that formula; and which was sufficient so long as they limited themselves to the theoretical discussion of the question. The legislature of Kentucky, in its resolutions of November 14, 1799, gave the advocates of state rights the term demanded, in the sentence:

"Resolved, That . . . the several states who formed that instrument being sovereign and independent, have the unquestionable right to judge of the infraction; and that a nullification by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy.'

In later times the admirers of Madison and Jefferson who were true to the Union have endeavored to confine the meaning of these resolutions within so narrow limits, that every rational interpretation of their contents has been represented by them as arbitrary and slanderous. When about the end of the third and the beginning of the fourth decade of this century, the opposition to the federal government in Georgia, and especially in South Carolina, began to assume an alarming form, the aged Madison expressly protested that Virginia did not wish to ascribe to

single state the constitutional right to hinder by force the execution of a law of the United States. "The resolution," he wrote, March 27, 1831, "was expressly declaratory, and proceeding from the legislature only, which was not even a party to the constitution, could be declaratory of opinion only." In one sense, this cannot be questioned. In the report of the committee of the Virginia legislature on the answers of the other states to the resolutions of 1798, we read as follows: "The declarations are expressions of opinion unaccompanied by any other effort than what they may produce on opinion, by exciting reflection." 991 But to concede that this was the sole intention

1 Elliot, Deb., IV., p. 578.

of the resolutions of the 24th of December, is to deprive the words, according to which the states had the right and were in duty bound to "interpose" in case the general government had in their opinion permitted itself to assume ungranted power, of all meaning.

But it has never yet been denied that these few words express the pith of all the resolutions. More was claimed than the right to express opinions—a right which had never been questioned. If expression was not clearly and distinctiy given to what was claimed, it was to leave all possible ways open to the other states to come to an agreement in all essential matters.1

Jefferson was in this instance less cautious than Madison, and his vision was more acute. He thought that the crisis of the constitution had come, and therefore assumed a standpoint from which he could not be forced back to the worthless position adopted by Madison in his celebrated report of 1800.3 Jefferson allowed it to depend on the further course of events whether force should be used, or whether only the right to employ force should be expressly and formally claimed. At first he was anxious that a middle position should be assumed, but a middle position which afforded a secure foothold. The legislature of Kentucky had done this, inasmuch as it had adopted that passage in his draft in which it was claimed that the general government and the states were equal parties, and in which it was recognized that the latter had "an equal right to judge” when there was a violation of the constitution, as well as to determine the ways and means of redress.

4

Madison, and later, Benton, as well as all the other ad

Madison in the letter to Jefferson, referred to above.

'Randall, Life of Jefferson, II., p. 451.

Elliot, Deb., IV., pp. 546-580.

Madison to Cabell, May 31, 1830. See Jefferson's Correspondence, III., p. 429, Randolph's Ed., and Madison's Correspondence, edited by Maguire, p. 286.

Thirty Years' View, I., p. 148.

RESPONSIBILITY OF JEFFERSON.

149

mirers of the "sage of Monticello," who were opposed to the later school of secessionists, have laid great weight on the fact that the word nullification, or anything of a like import, is to be found only in the Kentucky resolutions of 1799, which did not originate with Jefferson. This technical plea in Jefferson's behalf has been answered by the publication of his works. Among his papers two copies of the original draft of the Kentucky resolutions of 1798 have been discovered in his own handwriting. In them we find the following: Resolved, That when the general government assumes powers "which have not been delegated, a nullification of the act is the rightful remedy: that every state has a natural right, in cases not within the compact, [casus non fæderis] to nullify of their own authority all assumptions of power by others within their limits.""

That Jefferson was not only an advocate, but the father, of the doctrine of nullification is thus well established. It may be that Nicholas secured his assent to the striking out of these sentences, but no fact has as yet been discovered in support of this assumption. Still less is there any positive ground for the allegation that Jefferson had begun to doubt the position he had assumed. Various passages in his later letters point decidedly to the very opposite conclusion.

But all this is of interest only in so far as it corrects a misrepresentation of historical facts. It has no important bearing on the question itself. If, in fact, Jefferson had not employed the term nullification, it would be only a negative merit of the same significance as the negative merit of Madison that he used the indefinite expression "to interpose," instead of the definite expressions of the Kentucky resolutions. It was not the part of Madison to play the advocate for Jefferson in a case in which he had

'Jeff., Works, IX., p. 469.

to speak for himself as well. The "principles" presented and established by the three resolutions were the same in every respect; they differed only in their form, and each succeeding one was more in keeping with the nature of the matter than the preceding. The stone has been cast rolling on an inclined plane, and it rolls on.

If the practical measures proposed were not in harmony with the principles adopted, that fact might be, for the time being, of the greatest importance. But what assurance was there that they would never be in accord with them? The button on the sword's point is a protection as long as it covers it; but it may be removed at any moment, and the sword become as dangerous as if it had never been there. Besides, the three resolutions were also completely similar in this, that the proposed practical measures were in no case such as the principles advocated suggested. While the legislature of Kentucky employed the ominous word "nullification," it solemnly protested that it did not wish to offer resistance except in a "constitutional manner." The year before, it had even declared, that it desired only to urge the other states to "unite with this state to procure at the next session of congress a repeal of the unconstitutional and obnoxious acts." Virginia, which had been so over-cautious, or rather so over-crafty, in the language employed in her resolutions, did not permit herself to make a similar declaration until 1800, and after the other states2 had unambiguously condemned her course, while the legis lature of Kentucky declared that it desired to request congress to repeal these laws, it "resolved" they were completely void and without force, and it asked the other states

1 This paragraph is wanting in Jefferson's draft. It was substituted for the sentence erased in the 8th paragraph of the draft. The rest of it is the 9th paragraph of the resolutions adopted by the legislature.

2 Delaware, Rhode Island, Massachusetts, New York, Connecticut, New Hampshire and Vermont. Massachusetts answered the resolu tions with an exhaustive refutation. Elliot, Deb., IV., pp. 533-537.