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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 distinctly 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,2 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.
Madison, and later, Benton, as well as all the other ad
Madison in the letter to Jefferson, referred to above.
2 Randall, Life of Jefferson, II., p. 451.
Elliot, Deb., V., 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.
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 perinit 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.
Delaware, Rhode Island, Massachusetts, New York, Connecticut, New Hampshire and Vermont. Massachusetts answered the resolutions with an exhaustive refutation. Elliot, Deb., IV., pp. 533-537.
EFFECT OF NULLIFICATION.
to pass similar resolutions. And did not the legislature of Virginia make essentially the same demand when it declared it the duty of the states "to interpose" and added: "Resolved, that the general assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each for co-operating with this state in maintaining, unimpaired, the authorities, rights, and liberties reserved to the states respectively, or to the people"? And finally, was not nullification expressly declared by the legislature of Kentucky to be a constitutional remedy in 1799? In a word, as the "principles" advanced in the resolutions. were the same, they led to the same logical conclusions, which were clearly expressed in the Kentucky resolutions, namely, the right of the states, through the organ of their legislatures, to "resolve" that laws of congress were unconstitutional, and therefore void and of no effect.
If the claim to this right were well founded, the constitution was, indeed, different from the articles of confederation in particulars; but the political character of the Union was essentially unchanged, and it was now, as then, a confederation of the loosest structure. If the right were acknowledged, the people were placed at the very point at which they had stood when Washington wrote: "We are to-day one nation, and to-morrow thirteen." To the ex
1 Washington now again declared: "The constitution according to their [the anti-Federalists'] interpretation of it, would be a mere cipher." Washington, Dec. 25, 1798, to Lafayette. Works, XI., p. 378. Three weeks later he wrote to P. Henry: "Measures are systematically and pertinaciously pursued which must eventually dissolve the Union or produce coercion." Works, XI., p. 398. Very shortly afterwards the ultimate consequences of this interpretation of the constitution were boldly drawn. Tucker, whose edition of Blackstone's Commentaries appeared in 1803, writes, Vol. I., App., p. 175: “The federal government, then, appears to be the organ through which the united republics com
tent that practice was in accord with theory, a mere mechanical motion would have again taken the place of organic life. Sooner or later even that must have ceased, for the state is an organism, not a machine.
As certainly as thistles spring from the seed of the thistle when it falls on the proper soil, so certainly must the consequences mentioned above follow under the given circumstances, from Madison's "to interpose." It is ridiculous to observe, how, in the United States, the use of this expression is declared to have been harmless, or even meritorious, while the word "nullification" is looked upon as the source of the whole evil. The apprentice in magic upbraids the spirits that they do not change their form and turn back into brooms when he pronounces the wrong charm. Here the spirits are conjured up, but their conjurors turn their backs upon them, after the airy beings have prepared for them the bath they prayed for, and reproach heaven and earth, but not themselves, when the flood rushes in thick volumes from their homes into the highway. As if the spirits ever, of their own accord, turn into brooms again when they have performed what they have been commanded.
It was reserved for a later time and another man to elaborate in detail the doctrine of nullification. John C. Calhoun solved the riddle on paper in such a way that the right of nullification appeared not only compatible with the existence of the Union, but as the condition of its free development, and of its strength. There was no time as
municate with foreign nations and with each other. Their submission to its operation is voluntary; its councils, its engagements, its authority, are theirs, modified and united. Its sovereignty is an emanation from theirs, not a flame in which they have been consumed, nor a vortex in which they have been swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, in the most unlimited extent." See also Rawle, p. 302, etc.