The year 1798 was a gloomy one for the Republicans. Believing that Hamilton and his followers were bent on making the government into a centralized authority, they now thought that their worst anticipations were about to be realized. They had seen a standing army created, with the much-dreaded Hamilton in a position to control it.
They had seen three laws enacted that they did not believe warranted by any grant of power to the national government, and which gave that government-wide power over the rights of individuals. They saw the Federalists drunk with power and prepared to go still further in the direction of consolidation. They saw the people greatly excited at the conduct of France and ready to give the war party all that it should ask, without thinking about what abuses their confidence might lead.
In their discouragement, some Republicans had thoughts of dissolving the Union. One of them, John Taylor, of Caroline County, Virginia, wrote to Jefferson to that end. He suggested that his own state and North Carolina might be withdrawn from the Union and united in a government that should preserve the ideals that he loved most. But Jefferson had not lost his head. To Taylor, he wrote in a temperate tone. Party divisions, he said, would always exist in a representative government, and no Union could continue if the minority should resort to secession whenever it did not have its way. He asserted that the people were only temporarily misled, and that he believed they would soon come to their normal ways of thinking.
Jefferson was willing, however, to have the states make a protest against the tendency of the Federalists. He expected that such a course would be a means of calling attention to the evils which he saw and at the same time furnish an authentic statement of party principles. In the autumn of 1798, he decided, after consulting with his friends, to introduce such resolutions into the legislatures of Virginia and North Carolina. The latter state had been reliably Republican, but the Federalist movement of 1798 reached it in the autumn election, and he changed his plan, choosing the state of Kentucky instead. Thus were planned the famous Kentucky and Virginia resolutions. The former was written by Jefferson himself, although under strict injunctions that his authorship should not be revealed, and was adopted in November of the same year by a vote practically unanimous. The latter was written by Madison and was carried through the Virginia assembly in December 1798, by a vote of 100 to 63 in the House of Delegates, and 14 to 3 in the Senate.
The Kentucky resolutions were nine in number. The first asserted that the Constitution was a compact of states, and "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 measures of redress." Other resolutions arraigned the alien and sedition laws, and pronounced them "void and of no force." The seventh declared that the whole system of broad construction was unconstitutional; the eighth ordered the transmission of copies of the resolutions to Congress; and the ninth called on all the "co-states" to unite with Kentucky in suppressing the unconstitutional action of the general government. It declared, also, that Kentucky would "submit to undelegated and consequently unlimited powers in no man, or body of men, on earth."
The Virginia resolutions were more moderate than those of Kentucky. "In case," they ran, "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." They regretted that Congress by forced construction showed a disposition "to consolidate the states by degrees into one sovereignty"; they denounced the alien and sedition laws; and they called on the other states for aid in maintaining the liberties reserved to the states.
These two sets of resolutions differed as the men who wrote them differed. The former were the words of a man whose function was to arouse and fix public opinion. He was not judicially minded; he was an imaginative philosopher. He believed in the compact theory of the Union and he followed it to its logical conclusion. In a clause of his original draught of these resolutions, but whether eliminated by his hand or not is not known, there is an expression that goes to the limit of state nullification. It declares "that every state has a natural right in cases not within the compact to nullify of their own authority all assumptions of powers by others within its limits." In this clause "every atom of Calhoun's perfected theory finds a perfect ante-type."
Jefferson was intent on the present. He wanted to arrest the tendency of Federalism, and looking intently at that end saw not the remote effects, and perhaps cared not for them. Speaking of his own resolutions, he said at the time they were announced, "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 may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent." A cautious and practical leader of men, he had the spirit of wise expediency. He was prepared to claim much and to take what seemed best.
Madison's resolutions were drawn in a judicial spirit. Where Jefferson had declared that the states might judge infractions of the compact for themselves, Madison was content to say that they might "interpose" to obtain redress. What form interposition might take was not indicated. This was a temperate way of announcing his views and was better adapted to campaign purposes in a state like Virginia than the more extreme utterances of Jefferson. In 1831, Madison declared that his own resolutions, and those of his colleagues as well, were prepared merely for political effect and that they were not to be taken as an exposition of constitutional doctrine.
The Kentucky and Virginia resolutions were sent to the other states for consideration. In the north, the Federalists controlled the legislatures, and all of the states north of the Potomac made replies unfavorable to the resolutions. All defended the alien and sedition laws as proper and legal, and all declared that the federal courts were the legal interpreters of the Constitution. In their replies only one, the small state of Vermont, undertook to deny in a clear manner the compact theory of the Union; and this seems to indicate that the theory was so generally accepted by the people that the makers of the replies were unwilling to commit themselves in specific antagonism to it. Federal consolidation was unpopular, and the nearest they would go to it was to express confidence, as most of them did, in the power of the United States supreme court to pass on the constitutionality of an act of Congress.
In the great Revolutionary struggle the idea that government is a compact had taken a firm hold on people. It was an idea better suited to a simply organized society than to one highly complex in its distribution of power. It was still a popular idea, as the Republicans well knew; and it lingered long in the consciousness of certain parts of the nation. The southern states made no replies. Federalism had made considerable gains in the Carolinas and Georgia in the elections of 1798, and it was probably not thought advisable to bring on strife on such a question as the resolutions. Quiet and good management would without a doubt restore these states to Republicanism as soon as the excitement had subsided, and for that event, it would be better to wait than to bring on a doubtful struggle.
In November 1799, Kentucky considered the replies of the states, and her legislature enacted an additional set of resolutions. It reaffirmed the declarations in the former resolutions, saying that for the federal officials to interpret the federal Constitution was nothing short of despotism. It reserved the right of interpretation to the states, and said, "A nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy." This clause is the only place in which the word "nullification" is used in either set of resolutions.
In the Virginia assembly, the replies of the states were referred to a committee the report of which was submitted by Madison. It contained a long preamble and a short resolution. The former was an exhaustive defense of the compact theory of the Constitution, and the latter reasserted the faith of the assembly in the principles of their first set of resolutions.
The Kentucky and Virginia resolutions made a commotion in public life. The Federalists attacked them vigorously. They had no concept of the effects which the resolutions might have on public opinion. They turned to the theory of a French plot, an expedient which they could employ on any occasion. France, they said, was seeking to detach Kentucky from the Union, in order to unite it to Louisiana, which she was trying to get ceded by Spain; and the resolutions of that state were regarded as the first step in that direction. They considered dissolution of the Union as a probability, both from Virginia's evident desire for it and because New England wanted to break away from the bonds which bound it to the South. Fenno said that the federal government was "a jangling and chaotic confusion," comparable to "a farrow of pigs" which had so thriven on the nourishment of their mother that they were "able to insult her authority and resist her control."
The imputation of a French plot could not be sustained by the Federalists. The public realized that the issue was the alien and sedition laws, and back of that was the consolidating tendency of Federalism. In this respect, the Republicans were fortunate, for they had at last a predominating issue which was free from the miserable French entanglement. It concerned internal politics, it was democratic in tendency, and it appealed to the consciousness of every man. By discussing it in so many of the state legislatures, they had put it before the people in a most extensive sense. Their local leaders followed this success by earnest work. Grand juries and local committees everywhere made addresses, public discussions were held, and newspapers scattered the arguments. It was the most intense purely political appeal the country had up to that time witnessed. The effects were seen in the outcome of the election of 1800.
The Kentucky and Virginia resolutions produced a singular scheme in the brain of Hamilton. He seems to have thought them the rash scheming of irresponsible men and to have believed that the best way of meeting them was by aggressive action. Catching at a report that Virginia was preparing to support her position by arms, he suggested that the United States enlarge its own functions by extending the judiciary so as to carry its power more completely to the everyday life of the citizens, by a large system of public roads and canals, by national patronage of agriculture and the arts, by enlarging the navy to six ships of the line, twelve frigates, and twenty-four sloops of war, by keeping up the army on a basis like the present even if war with France should be avoided, by establishing a military academy, by strict laws to punish in federal courts seditious libels and to send away aliens, and by giving Congress, if possible, the right to divide the large states. Hamilton's friends were wiser than he, and made no attempt to put this scheme into execution: when they received it they had already realized that public opinion was moving against them. The avowal of his plan, however, goes far to support Jefferson's contention, often announced, that the Federahsts would follow the alien and sedition laws by further advances towards a strongly centralized government.
The nullification movement in South Carolina, which occurred in 1828 to 1832, aroused renewed interest in the resolutions of 1798, and the promoters of nullification drew many of their principles from that source. They sought out the old theory and carried it somewhat further than it had gone in 1798. No resolution passed by Kentucky or Virginia asserted the right of nullification by a state but by the states. Under the older theory, therefore, it is possible to claim that the intention was to secure redress by a convention of the states; but the South Carolinians declared openly for the right of a state to nullify a law of Congress of its own action, and to go on defying it as a member of the Union.
The nullifiers of 1828-1833 were very anxious to have the support of Virginia, then the long-honored leader of the South, and they made strenuous efforts to show that the doctrines for which they contended were identical with the theories of Jefferson and Madison. They were mistaken. Madison, who was still alive and long past that buoyant period of life in which the nullifiers still flourished, wrote earnestly against the contention.
The older resolutions were an important step in the development of secession. They summed up in tangible form a strong feeling for disunion at the time when they were passed, and the leaders of government did not dare resist it. The yielding of the government to the Republicans in 1800 produced the recession of disunion; it was a triumph for the protesting party. In 1833 neither side could be said to have triumphed, but there came a time when the protesting party was in a clear minority. Then there was no yielding to them; the movement ran on into open secession, and the result was its final extinction.
