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Lloyd's bill did not come up to be voted upon in its original form; but the alien and sedition laws were of themselves sufficient to realize Hamilton's fears. The supreniacy of Massachusetts and Connecticut had become so unbearable to the south, that the idea of separation arose again in May. The influential John Taylor of Virginia thought "that it was not unwise now to estimate the separate mass of Virginia and North Carolina with a view to their separate existence." Jefferson wrote him in relation. to this advice on the 1st of June, 1798,1 "that it would not be wise to proceed immediately to a disruption of the Union when party passion was at such a height. If we now reduce our Union to Virginia and North Carolina, immediately the conflict will be established between those two states, and they will end by breaking into their simple units."

As it was necessary that there should be some party to oppose, it was best to keep the New England states for this purpose. He had nothing to say against the rightfulness of the step. He contented himself with dissuading from it on grounds of expediency. He counseled patience until fortune should change, and the "lost principles" might be regained, "for this is a game in which principles are the stake."

Considering these views, it is not to be wondered at, that in consequence of the alien and sedition laws, Jefferson began to see the question in a different light. We shall have something to say later on the question whether, and to what extent, he considered it timely to discuss the secession of Virginia from the Union. But he was soon satisfied that his opponents had bent the bow too nearly to the point of breaking, to permit him to look upon further

shall then give to faction body and solidity." Ham., Works, VI., p. 307; Gibbs, Menl. of Wolcott, II., p. 68.

'Jeff., Works, IV., pp. 245-248.

patient waiting for better fortune as the right policy. It was no longer time to stop at the exchange of private opinion, and the declarations of individuals. The moment had now come when the "principles" should be distinctly formulated, and officially proclaimed and recognized. Not to do this, would be to run the risk of being carried away by the current of facts to such a distance that it would be difficult and perhaps impossible to get hold of the principles again. But if, on the other hand, this were done, everything further might be calmly waited for, and the policy of expediency again brought into the foreground. The protest was officially recorded, and so long as it was not, either willingly or under compulsion, as officially recalled, or at least withdrawn, it was to be considered as part of the record which might be taken advantage of at any stage of the case. Herein lies the immense significance of the Virginia and Kentucky resolutions.

Their importance is enhanced by the fact that Madison, who had merited well of the country, on account of his share in the drawing up and adoption of the constitution, and whose exposition of it is therefore of the greatest weight, was the author of the Virginia resolutions of December 24, 1798, and by the further fact that Jefferson, the oracle of the anti-Federalists, had written the or

1 They were adopted by the house on the 21st, but by the senate not until the 24th.


It throws some light on the character of Jefferson that he gave G. Nicholas, who was to introduce the resolutions into the legislature of Kentucky, the "solemn assurance" that "it should not be known from what quarter they came." He himself gives this further information on the point: "I drew and delivered them to him, and in keeping their origin secret he fulfilled his pledge of honor. Some years after this colonel Nicholas asked me if I would have any objection to its being known that I had drawn them. I pointedly enjoined that it should not.” (Jeff., Works, VII., p. 299.) It was in December, 1821, that in answer to a question confidentially put by Nicholas's son, he first acknowledged that they originated with him.



iginal draft of the Kentucky resolutions of November 10, 1798.1

Although not in accord with chronological order, it is advisable to consider the Virginia resolutions first, for the reason that they do not go as far as the Kentucky resolutions. According to the testimony of their authors, the resolutions of both legislatures had the same source, and there were special reasons why it was necessary to make the Virginia resolutions of a milder character. Although a violation of chronological order, it seems, therefore, proper


1 Randall, Life of Jefferson, II., p. 452, erroneously dates them Nov. 14. The house passed them on Nov. 10; the senate agreed to them on the 13th, and the Governor approved them on the 19th. Elliot, Deb., IV., p. 544. Randall relies principally on the erroneous date to support the assumption that Jefferson's assent to the modifying provisions of his draft was obtained.

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Jefferson says that the conference on the Kentucky resolutions took place between him and the two brothers Nicholas; and he adds: "I think Mr. Madison was either with us or consulted, but my memory is uncertain as to minute details." Jeff., Works, VII., p. 230; J. C. Hamilton, Hist. of the Rep. of the U. S. of America, VII., p. 264.

* Madison himself had well-founded doubts of the constitutionality of the contemplated procedure, and remarked, that on that account he had been induced to make use of "general terms" in the Virginia resolutions. He writes to Jefferson on Dec. 29: "Have you ever considered thoroughly the distinction between the power of the state and that of the legislature on questions relating to the federal pact? On the supposition that the former is clearly the ultimate judge of infractions, it does not follow that the latter is the legitimate organ by which the compact was made." J. C. Hamilton, Hist. of the Rep. of the US. of America, VII., p. 275. As a matter of course, Madison's constitutional doubts should have been applied also to the Kentucky resolutions. But Jefferson, in a letter to J. Taylor, of Nov. 26, Works, IV., p. 259, mentions a very important ground why it was necessary, especially in Virginia, to proceed with great caution. He writes: "There are many considerations dehors of the state which will occur to you without enumeration. I should not apprehend them if all was sound within. But there is a most respectable part of our state who have been enveloped in the X. Y. Z. delusion, and who destroy our unanimity for the present moment."

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



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 a 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."" But to concede that this was the sole intention

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

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