In 1844, the legislature of Massachusetts passed a series of resolutions upon the annexation of Texas, containing the threat,"That the project of the annexation of Texas, unless arrested on the threshold, may drive these States into a dissolution of the Union." 8 On the same subject, February 22d, 1845, the same body adopted another series of resolutions, which included the statement that,

"As the powers of legislation granted in the Constitution of the United States to Congress, do not embrace the case of the admission of a foreign state, or foreign territory, by Legislation, into the Union, such an act of admission would have no binding force whatever on the people of Massachusetts."

From the enactment of the tariff of abominations of 1828 to the outbreak of the Civil War, threats of secession and assertions of the right to secede were constantly made by Southern statesmen.10

upon the rights and interests of the commercial sections of the Union. Wherever it shall appear that the causes are radical and permanent, a separation by equitable arrangement will be preferable to an alliance by constraint among nominal friends, but real enemies." (Report of the Hartford Convention. Dwight, History of the Hartford Convention.) While the bill for a draft was pending the Connecticut legislature authorized the Governor in case of its passage, to call an extraordinary session to consider measures "to secure and preserve the rights and liberties of the people of this State, and the freedom, sovereignty and independence of the same." (Henry Adams, History of the United States, vol. ix, p. 278; citing Niles' Register, vii, Supplement, p. 107.)

emergencies occur which are either be yond the reach of the judicial tribunals, or too pressing to admit of the delay incident to their forms, States which have no common umpire must be their own judges, and execute their own decisions. It will thus be proper for the several States to await the ultimate disposal of the obnoxious measures recommended by the Secretary of War, or pending before Congress, and so to use their power according to the character these measures shall finally assume, as effectually to protect their own sovereignty, and the rights and liberties of their citizens." (Report of the Hartford Convention. Dwight's History of the Hartford Convention, pp. 361, 362.) The language was evidently copied from the Kentucky Resolutions (infra, § 32).

8 Stephens, Constitutional View of the Late War between the States, vol. i, p. 511.

9 Ibid.

10 See Wilson, Rise of the Slave Power in the United States, and Van Holst, Constitutional History of the United States, passim.

§ 32. Virginia and Kentucky Resolutions.

The enactment of the Alien and Sedition Laws 1 by the Federalists was the cause of the Kentucky and Virginia resolutions, which contained the first germ of the doctrine of nullification. The draft of the Kentucky resolutions was made secretly by Jefferson, then Vice-President, in 1798, at the request of Madison, John Breckenridge, and Wilson C. Nicholas of Kentucky;2 in order to unite the legislatures of the Anti-Federalist States in protests against the constitutionality of those laws. It was his original intention to have them first introduced in the legislature of North Carolina; but a change in the political complexion of that State caused him to abandon this idea; in which he acted wisely. For it is said that when the Virginia resolutions were first presented to the North Carolina legislature they were promptly voted under the table. The original draft of the resolutions, after protesting against the Alien and Sedition Laws, and also other acts punishing crimes for causes not specifically enumerated in the Constitution, declared them "altogether void and of no force," as infringements of the Constitution for reasons therein assigned, and appointed a Committee of Conference and Correspondence to communicate the resolutions to the legislatures of the several States, with a statement of the opinion of the resolving States upon the nature of the Federal compact which contained the following language:

"That therefore, this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth; that in cases of an abuse of the delegated powers, the members of the General Government being

§ 32. 1 These statutes are printed in the Appendix to this chapter, infra.

2 Jefferson's letter to J. Cabel Breckenridge, Dec. 11, 1821. Jefferson's Works, 1st ed., vol. vii, p. 229. In this edition of Jefferson's Works, his correspondent was erroneously described as Nicholas. The letter was in reality written to the son of John Breckinridge, and is still in the possession of

his descendants. See Southern Bivouac of March, 1886, and The Kentucky Resolutions of 1798, by E. O. Warfield, pp. 136-144, where the mistake is explained and corrected.

3 Jefferson to W. C. Nicholas, quoted by Warfield, The Kentucky Resolutions, p. 146.

4 Madison to Jefferson, Madison's Works, vol. ii, p. 152.

chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed 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 foederis) 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."

"That these successive acts of the same character, unless arrested at the threshold, must necessarily drive these States into revolution and blood."

The paper concluded with the expression of the hope

"That the co-States recurring to their natural right in cases not made Federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government, not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories."5

The State legislatures of Kentucky and Virginia, however, were at first not disposed to go so far as Jefferson suggested. The first Kentucky Resolutions passed the legislature and were approved by the Governor, November 16th, 1798. They contained the substance of Jefferson's draft; modified his language by omitting his declaration of the right of nullification; said, after condemning the Alien and Sedition Laws, —

"That these and successive acts of the same character, unless arrested on the threshold may tend to drive the States into revolution and blood;"

and concluded merely with the phrase,

That the co-States recurring to their natural right in cases not made Federal, will concur in declaring these acts void and of no force, and will each unite with this commonwealth in requesting their repeal at the next session of Congress."

The Virginia Resolutions were drawn by Madison, and were much milder in form both as first presented and as finally adopted.

5 Jefferson's Works, 1st ed., vol. ix, pp. 461, 471.

6 Preston's Documents Illustrative

of American History, pp. 287-295. The resolutions are printed in full in the appendix to this chapter.

They contained a protest against the obnoxious laws, and requested the other States to

"concur with this commonwealth in declaring as it does hereby declare 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 the unimpaired authorities, rights and liberties reserved to the States respectively, or to the people."

They further declared

"That this Assembly doth explicitly 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 intentions of the instrument constituting that compact; as no futher valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of her powers not granted by the said compact, the States, who are the 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."

As first introduced by the celebrated John Taylor of Caroline County, the declaration of the unconstitutionality of the acts contained, after the word "unconstitutional," "and not law, but utterly null, void, and of no force or effect." The declaration concerning the nature of the constitutionality of the compact also stated at first concerning the same: "to which the States alone are parties." The words in italics were stricken out in the legislature by unanimous consent. The resolutions were adopted after considerable discussion by a vote in the House of Delegates of one hundred to sixty-three, December 21, 1798, and in the Senate of fourteen to three, three days later. Throughout the debate, the idea that force would be used in opposition to the Federal government was expressly repudiated by the supporters of the resolutions.8

The Virginia Report of 1799-1800, touching the Alien and Sedition Laws, together with the Virginia Resolutions of Dec. 21, 1798, the debate and proceedings thereon in the House of Delegates in Virginia, and several other documents illustrative of the Report and Resolutions. Richmond: J. W.

Randolph, 121 Main Street. Also for sale by Franck Taylor, Washington; Cushing & Brother, Baltimore; and T. & J. W. Johnson, Philadelphia, Pa. 1850; p. 148.

8 John Mercer said, thought of by any one James Barbour: 66

66 Force is not (ibid., p. 42). He was for using

Seven State legislatures replied to these resolutions, condemning the same in general language, and in some cases affirming the doctrine that the Supreme Court of the United States had the ultimate authority of deciding on the constitutionality of an act of Congress. Kentucky rejoined, November 14th, 1799, by a preamble and resolution which concluded in language largely taken from the omitted part of Jefferson's original draft:—

"That the several States who formed that instrument" (the Constitution), "being sovereign and independent, have the unquestioned 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. That this Commonwealth does, under 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, or ever hereafter, cease to oppose, in a constitutional manner, every attempt, at what quarter soever 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 now enters against them its solemn protest." 10

no violence. It is the peculiar blessing of the American People to have redress within their reach by constitutional and peaceful means. He was for giving Congress an opportunity of repealing those obnoxious laws complained of in the resolutions." In closing the debate in the Committee of the Whole, "Mr. John Taylor said he would explain in a few words what he had before said. That the plan proposed by the resolution would not eventuate in war, but might in a Convention. He did not admit or con

template that a Convention would be called. He only said, that if Congress upon being addressed to have those laws repealed, should persist, they might, by a concurrence of threefourths of the States, be compelled to call a Convention." Ibid, p. 148.

9 Delaware, Rhode Island, Massachusetts, New York, Connecticut, New Hampshire, Vermont. Ibid., pp. 168177. Elliot's Debates, 2d ed., vol. iv,

pp. 532-539.

10 See the whole Resolution in Appendix to this chapter.