States was the rightful remedy. Undoubtedly Jefferson read the Kentucky resolutions at a time when he believed liberty was in its last stronghold. He feared that the Federalists were bent on carrying out a program which, unless nipped in the bud, might drive the States to bloody rebellion. But it is unfair to Jefferson to say that the drift of these resolutions represented his sober thought as to the proper remedy for Constitutional violations. Madison was not ready to go quite as far as Jefferson, and at a later period in his life, as already stated, explicitly repudiated the doctrines of those who believed that the State had a right to nullify the acts of the general government.*

In justice to Jefferson's views, we give a letter written in 1811, a few years before his death, to Count Destutt Tracy. In this letter, he

says:

* Adams, Lives of Madison and Monroe, p. 75. For Mr. Madison's letter to the Hon. Edward Everett on the subject of nullification and on the proceedings of the Virginia legislature, see Appendix III. at the end of the present chapter. For his views on nullification in general, see Hunt, Life of Madison, p. 261 et seq.

Tucker, Life of Jefferson, vol. ii., pp. 322-324.

"The true barriers of our liberty are our state governments; and the wisest conservative power ever contrived by man is that of which our Revolution and present government found us possessed. Seventeen distinct states, amalgamated into one as to their foreign concerns, but single and independent as to their internal administration, regularly organized with a legislature and a governor, resting on the choice of the people, and enlightened by a free press, can never be so fascinated by the arts of one man, as to submit voluntarily to his usurpation. Nor can they be constrained to it by any force he can possess. While that may paralyse the single state in which it happens to be encamped, sixteen others, spread over a country of two thousand miles in diameter, rise up on every side, ready organized for deliveration by a constitutional legislature, and for action, by their governor, constitutionally the commander of the militia of the state,- that is to say, of any man in it able to bear arms; and that militia, too, regularly formed into regiments and battalions, into infantry, cavalry, and artillery, trained under officers, general and subordinate, legally appointed, always in readiness, and to whom they are already in habits of obedience. The republican government of France was lost without a struggle, because the party of 'un et indivisible' had prevailed: no provincial organizations existed to which the people might rally under authority of the laws, the seats of the Directory were virtually vacant, and a small force sufficed to turn the legislature out of their chamber, and to salute its leader chief of the nation. But with us, sixteen out of the seventeen states ising in mass, under regular organization, and legal commanders, united in object and action by their Congress, or, if that be in duresse, by a special convention,- present such obstacles to a usurper, as forever to stifle ambition in the first conception of that object.

"Dangers of another kind might more reasonably be apprehended from this perfect and distinct organization, civil and military, of the states; to wit, that certain states, from local and occasional discontents, might attempt to secede from the Union. This is certainly possible, and would be befriended by this regular organization. But it is not probable that local discontents can spread to such an extent as to be able to face the sound parts of so extensive a Union: and if ever they should reach the majority, they would then become the regular government, acquire the ascendency in Congress, and be able to redress their own grievances by laws peaceably and constitutionally passed. And even the

states in which local discontents might engender

a commencement of fermentation, would be par

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may not be committed absolutely to

parties into which we have fallen, into which all states must fall, wherein men are at liberty to think, speak, and act freely, according to the diversities of their individual conformations;

and which are, perhaps, essential to preserve the purity of the government by the censorship which

these parties

habitually exercise over

each

The two sets of resolutions were as different as the men who wrote them. Jefferson believed in the compact theory of the Union and followed it to its logical conclusion. He would arrest the tendency of Federalism, even if he had to go to the length of

State nullification. One of the clauses in his draft, which was omitted in the Resolutions as finally adopted, states "that every State has a natural right in cases not within the compact to nullify of their own authority, all assumptions of power by others within their limits, that without this right they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them." Jefferson was an opportunist and was intent on the present. He was prepared to claim much and take what he could get, for, said he, in a letter to Madison, November 17, 1798, "I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in the future, and leave the matter in such a train as that we

* See Ford's ed. of Jefferson's Writings, vol. ix., pp. 305-310.

Ibid, vol. vii., p. 301.

may be free to push as far as events will render prudent."*

Madison, not prepared, as we have already pointed out, to go as far as Jefferson, drew his resolutions in a more judicial spirit. Where Jefferson said that the States themselves should judge of infractions of the compact, Madison said that they might "interpose to obtain redress, without stating, however, what form such interposition should take. This was more temperate and better suited for campaign purposes in Virginia than

the more extreme doctrines of Jefferson. In the letters written in 1831, Madison said that these resolutions were put forth for political effect, and not as an exposition of Constitutional doctrine. He denounced nullification and secession as "twin heresies "

that "ought to be buried in the same grave." "A political system," he says, "which does not contain an effective provision for a peaceable decision of all controversies arising within itself, would be a government in name only." 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,

Ford's ed. of Jefferson's Writings, vol. vii.,

p. 288.

See his letters to James Robertson, March 27, 1831, Madison's Works (Congress ed.), vol. iv., p. 166, and to N. P. Trist, December, 1831, ibid, p. 204 et seq.

390

therefore, can have a greater right to break off 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." Again he says 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." *

In accordance with the instructions contained in the Kentucky and Virginia Resolutions, the governors of those states sent copies of the resolutions to the executives of the several States for submission to their legislatures, and in the course of the next year replies were received.t Νο State south of the Hudson, save Delaware, said anything about the political doctrines contained in the resolutions, but the five New England States, together with New York and Delaware, vigorously dissented. In the North the Federalists controlled

the legislatures, and naturally all these defended the Alien and Sedition Laws as proper and legal, at the same time declaring the Federal courts to be the legal interpreters of the Constitution. Only one State-Vermont- denounced the compact theory of the Union,* which, according to Bassett, would seem to indicate that this theory was so generally accepted by the people that those who drafted the replies were not willing to commit themselves as being antagonistic to it. The Southern States made no replies. Federalists had made considerable gains in Georgia and the Carolinas in 1798, and it was deemed inadvisable to stir up strife on such a question as the resolutions.

The replies of the States cannot be regarded, however, as a fair indication of the sentiments of the people. In dissenting from the resolutions, the Northern States did not object to the doctrine of State sovereignty, but only to the arraignment of the Alien and Sedition Laws. Such Federalists as Hamilton, Adams, and Jay undoubtedly regarded the general government as the representative of the one sovereign American people. But to such Federalists as Pickering, George Morris, Harrison Gray Otis and George Cabot, the Federal government was the agent of the States, and that this government had the power to impose its edicts on unwilling States was a political solecism to

* Bassett, Federalist System, p. 270.

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dissolution: That if those who administer the general government be permitted to transgress

the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, an annihilation of the state governments, and the erection upon their ruins of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction, and that a nullification by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy: That this commonwealth does, upon the most deliberate reconsideration, declare, that the said alien and sedition laws are, in their opinion, palpable violations of the said Constitution; and, however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the

citizen, it would consider a silent acquiescence

as highly criminal: That although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor

ever hereafter, cease to oppose in a constitutional manner, every attempt, from what quarter so

ever offered, to violate that compact. And, finally, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact, this commonwealth does now enter against them its SOLEMN PROTEST."

When the matter was taken under consideration in the Virginia Legislature, Madison prepared a long and elaborate report.* The preamble was an exhaustive defence of the compact

*Madison's Works (Congress ed.), vol. i., pp. 151-152; vol. iv., pp. 515-555; Elliot, Debates, vol. iv., pp. 532-580 (ed. 1830).

theory of the Constitution. The concluding resolution, together with the report, was adopted in February, 1800, the resolution reading as follows:

Resolved, That the General Assembly, having carefully and respectfully attended to the proceedings of a number of the states, in answer to their resolutions of December 21, 1798, and having accurately and fully re-examined and reconsidered the latter, find it to be their indispensable duty, to adhere to the same, as founded in truth, as consonant with the Constitution, and conducive to its preservation; and more especially to be their duty to renew, as they do hereby renew, their protest against the alien and sedition acts,' as palpable and alarming infractions of the Constitution."

as

At last the Republicans had a political issue upon which they could meet the Federalists fairly and squarely. The Alien and Sedition Laws, together with the Kentucky and Virginia Resolutions, were not concerned with foreign entanglements, but with domestic affairs; and by discussing the issue in so many of the State legislatures, it had been most vividly brought to the attention of the people. Newspapers spread the arguments, the subject was discussed at public meetings, and everywhere addresses were made and issued, so that the subject became the most intense purely political appeal the country had witnessed up to that time. These resolutions were the forerunners of the nullification movement in South Carolina in and after 1828 and an important step in the development of the secession movement which culminated in war between the States in 1861.