pact 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." It is scarcely necessary to emphasize the difference between this and the view so frequently asserted in later years, that the general Government was constituted by a compact to which it was itself a party, each State forming as to itself the other party. It is scarcely more necessary to point out the various shades of interpretation given to the idea presented by the Kentucky and Virginia Resolutions, or how far short they fall of the interpretation which has been adopted through the influence of political and judicial action.

It is important, however, to note that the view of the nature of the general Government, which may be regarded as having the support of the best authority at the present time, was clearly enunciated in the Kentucky legislature by Mr. William Murray, of Franklin county, who alone opposed the resolutions from the beginning to the end. Mr. Murray pointed out that the "Constitution of the United States was rendered necessary by want of energy in the former Confederation," and that the Constitution "was not merely a covenant between integral States but a compact between the several individuals composing those States, and accordingly the Constitution commences with this form of expression: 'We, the people of the United States,' not we the thirteen States of America." He proceeded to declare that "to the judiciary, and the judiciary alone, it belongs to declare what acts of legislature are law and what are not law. And to their honor be it said that they have, with an independence becoming their character, declared an act passed by Congress no law."

This position, so ably but so vainly urged by Mr. Murray, was asserted by the Massachusetts legislature in its response to the Kentucky Resolutions as well as in other replies.

It is almost necessary, in order to illustrate the position of the Kentucky Resolutions, to quote the significant words of Mr. Madison in the Virginia Resolutions, contained in the third article:

"That, in case of a deliberate, palpable, and dangerous exercise of powers not granted by the compact, the States who are parties thereto have a 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."

That this point of view is highly illustrative of current political thinking is further proved by the almost identical words used by the Hartford convention when the New England States found themselves in a similar attitude to the general Government. The following passage is so similar to the words of Mr. Madison that it seems almost incredible that it was adopted by a body of intelligent men in opposition to the policy of Mr. Madison as President:

"In case of deliberate, dangerous, and palpable infraction of the Constitution affecting the sovereignty of the State and liberties of the people, it is not only the right, but the duty of such a State to interpose its authority for their protection in the manner best calculated to secure the end."

VII

The literature of the subject has been vitalized by almost every force which has entered into the political history of our country. The vivid and vigorous, if not always well-informed oratory of the new West, the intense and highly dramatic eloquence of the Southern leaders of the contest for the perpetuation of slavery and a provincial type of civilization, the legal learning the best school of New England statesmanship, an the great national debates growing out of the struggle of a young nation to rise to a consciousness of its unity and power have all contributed to the interpretation of the resolutions. Jeffersonian Democracy would have been glad to be rid of many of the associations which early attached themselves to the resolutions. The State rights party of Calhoun developed every possibility of a particularist interpretation. The Western Democracy, full of a spirit of national enthusiasm, strove to use them to

check the centralization, which seemed to subordinate the new States to the older communities.

It is scarcely possible at this late date, with the complete change of accent in political thinking, to realize how extremely significant the questions that are connected with these resolutions, their authorship, and the peculiar attitude of Mr. Jefferson, were for more than half a century, yet in these resolutions there is a germ of truth which may well be cultivated afresh in a time when the spirit of the age seems to favor the unlimited consolidation of government in a single element of it.

E. 9. Marpice.

CHAPTER I

STATE RIGHTS

The Kentucky and Virginia Resolutions of Thomas Jefferson and James Madison: Senator Thomas H. Benton [Mo.] and Professor Alexander Johnston on Their "Theory of Compact" as Opposed to the Calhoun Theory of Nullification-The Hartford Convention: Its Report-Senator Robert Y. Hayne [S. C.] on the "Treason of New England" as Expressed in the Convention-The Tariff of 1828-Threats of Secession by South Carolina and Georgia-President John Quincy Adams's "Appeal to the South"-Senator William Smith [S. C.] and Senator Hayne on the Protests of South Carolina and Georgia.

T

HE repeal of the Missouri Compromise and the Dred Scott decision marked the high tide of victory for the South in the controversy upon slavery. It was soon seen, however, indeed it had been foreseen before their accomplishment, that the triumph would prove a merely formal one, empty of all practical benefit. Accordingly, from this time onward, Southern statesmen began seriously to contemplate that measure to which they had so often threatened in moments of passion to resort-secession.

It is therefore in place here to revert to the question of State versus National rights, as enunciated by such Southern statesmen as Thomas Jefferson and James Madison in the early history of the republic, and to the threats of separation from the Union made in the Hartford convention and in the nullification proceedings of South Carolina and Georgia against the tariff acts of 1828 and 1832.

THE KENTUCKY AND VIRGINIA RESOLUTIONS

The views of Jefferson and Madison were formally presented in the Kentucky and Virginia resolutions. Rising out of the Alien and Sedition laws these will be

discussed, in origin and results, in the volume on Civic Rights [see Vol. VII, chapter iv]. Only that portion of them which applies directly to the right of secession will be taken up in the present connection.

The first of the resolutions presented by the Kentucky legislature (inspired if not by Jefferson by his political theory) was as follows:

1. The Union of the States is a compact, by which each State delegates to the Federal Government definite powers, reserving to itself the residuary mass of right to its own selfgovernment. When, therefore, the Federal Government assumes undelegated powers, its acts are void. The Federal Government was not constituted by the compact a final judge of the extent of its delegated powers, since this would have made its discretion and not the Constitution the measure of its powers. The Constitution established no common judge between the Federal Government and the State governments, and, according to the practice in all compacts of this kind, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

The Kentucky resolutions were, as described in the chapter upon them, sent to the legislatures of the various States. All but Virginia replying in opposition to them, the Kentucky legislature added a supplementary resolution which contained the assertion that:

The several States which formed the Constitution, being sovereign and independent, have the unquestionable right to judge of its infraction; and a nullification by these sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy.

The Virginia resolutions, drafted by James Madison, after asserting the doctrine of a strict construction of the Constitution, left it entirely to inference that if the Federal Government passed acts which, according to this Constitution, were unconstitutional the States concerned would have a right to resort to nullification. Thomas H. Benton, indeed, in his "Thirty Years' View" denied that the Virginia resolutions warrant this infer