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Subject Area: Political Theory
Topic: The American Revolution and Constitution

DRAFTS OF THE KENTUCKY RESOLUTIONS OF 1798 1 J. MSS. - Thomas Jefferson, The Works, vol. 8 (Correspondence 1793-1798) [1905]

Edition used:

The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 8

Part of: The Works of Thomas Jefferson, 12 vols.

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DRAFTS OF THE KENTUCKY RESOLUTIONS OF 17981J. MSS.

[Nov. 1798]

ROUGH DRAFT

1. Resolved that the several states composing the U. S. of America did are not united on the principle of unlimited submission to their general government; but that by a compact under the style & title of a Constitution for the U. S. and of Amendments thereto, they constituted a General government for special purposes; delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the General government assumes undelegated powers, it’s acts are unauthoritative, void & of no force.

That to this compact each state acceded as a state, and is an integral party, it’s costates forming, as to itself, the other party.

That the constitutional form of action for this commonwealth as a party with respect to any other party is by it’s organized powers & not by it’s citizens in a body.

That the 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 it’s discretion, & not the constitution, the measure of it’s powers: but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode & measure of redress.

2. Resolved that, one of the Amendments to the Constitution having declared that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, the act of the Congress of the U. S. passed on the 1st day of July 1798, intituled “An act in addition to the act intituled an Act for the punishment of certain crimes against the U. S.” which does abridge the freedom of speech & of the press, is not law, but is altogether void and of no force.

2. Resolved that, the Constitution of the U. S. having delegated to Congress a power to punish treason, conterfeiting the securities & current coin of the U. S. and piracies & felonies committed on the high seas and offences against the law of nations, and no other crimes whatsoever, and it being true as a general principle, and one of the Amendments to the Constitution having also declared, that “the powers not delegated to the U. S. by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,” therefore also, the same act of Congress passed by Congress on the 14th day of July 1798, and intituled “an Act in addition to the act intituled an Act for the punishment of certain crimes against the U. S.” as also the act passed by them on the day of June 1798, intituled “an Act to punish frauds committed on the bank of the U. S.,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution) are altogether void and of no force and that the power to create, define, & punish such other crimes is reserved, and of right appurtains solely and exclusively to the respective states, each within it’s own territory.

3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that “the powers not delegated to the U. S. by the constitution nor prohibited by it to the states, are reserved to the states respectively or to the people:” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the U. S. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved to the states or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far these abuses which cannot be separated from their use should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment by the U. S. of the freedom of religious opinions and exercises, & retained to themselves the right of protecting the same, as this state by a law passed on the general demand of it’s citizens had already protected them from all human restraint and interference. And that in addition to this general principle & the express declaration, another & more special provision has been made by one of the amendments to the constitution which expressly declares that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech of the press” thereby guarding in the same sentence and under the same words the freedom of religion, of speech & of the press, insomuch that whatever violates one either throws down the sanctuary which covers the others, and that putting witholding libels, falsehood and defamation equally with heresy & false religion are witheld from federal the cognisance of the federal tribunals, that therefore the act of the Congress of the U. S. passed on the 14th day of July 1798 intituled “an act in addition to the act intituled an Act for the punishment of certain crimes against the U.S.” which does abridge the freedom of the press is not law, but is altogether void and of no force.

4. Resolved that Alien-friends are under the jurisdiction and protection of the laws of the state wherein they are, that no power over them has been delegated to the U. S. nor prohibited to the individual states distinct from their power over citizens: and it being true as a general principle, and one of the Amendments to the constitution having also declared, that “the powers not delegated to the U. S. by the constitution, nor prohibited by it to the States are reserved to the states respectively, or to the people,” the act of the Congress of the U. S. passed on the day of July 1798 intituled “an Act concerning Aliens” which assumes powers over alien friends not delegated by the constitution is not law, but is altogether void & of no force.

5. Resolved that in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the constitution from abundant caution, has declared that “the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808,” that this commonwealth does admit the migration of Alien friends described as the subject of the said act concerning aliens; that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory; that to remove them when migrated is equivalent to a prohibition of their migration, and is therefore contrary to the said provision of the constitution, and void.

6. Resolved that the imprisonment of a person under the protection of the laws of this commonwealth on his failure to obey the simple order of the President to depart out of the U. S. as is undertaken by the said act intituled “an act concerning Aliens” is contrary to the constitution, one amendment to which has provided that “no person shall be deprived of liberty, without due process of law”; and that another having provided that “in all criminal cases prosecutions the accused shall enjoy the right to a public trial, by an impartial jury, to be informed of the nature & cause of the accusation to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defence” the same act undertaking to authorise the President to remove a person out of the U. S. who is under the protection of the law, on his own suspicion without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defence, without counsel, is contrary to these provisions also of the constitution, is therefore not law, but utterly void and of no force. That transferring the power of judging any person who is under the protection of the laws from the courts to the President of the U. S. as is undertaken by the same act concerning aliens, is against the article of the constitution which provides that “the judicial power of the U. S. shall be vested in courts the judges of which shall hold their offices during good behavior,” and that the s’d act is void for that reason also. And it is further to be noted that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive and a negative on all the Legislative proceed.

7. Resolved that the construction applied by the general government, (as is evidenced by sundry of their proceedings) to those parts of the constitution of the U. S. which delegate to Congress a power “to lay & collect taxes, duties, imposts, & excises, to pay the debt and provide for the common defence and welfare of the U. S.” and “to make all laws which shall be necessary & proper for carrying into execution the powers vested by the constitution in the government of the U. S. or in any department or officers thereof,” goes to the destruction of all the limits prescribed to their power by the constitution; that words meant by that instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers nor a part to be so taken as to destroy the whole residue of the instrument. That the proceedings of the general government under colour of these articles, will be a fit and necessary subject of revisal & correction at a time of greater tranquillity, while those specified, in the preceding resolutions, call for immediate redress.

8. Resolved that a committee of conference & correspondence be appointed who shall have in charge to communicate the preceding resolutions to the legislatures of the several states, to assure them that this commonwealth continues in the same esteem for their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly for those specified in their late federal compact, to be friendly to the peace, happiness and prosperity of all the states: that faithful to that compact, according to the plain intent & meaning in which it was understood & acceded to by the several parties, it is sincerely anxious for it’s preservation. That it does also believe that to take from the states all the powers of self-government, & transfer them to a general & consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these states: and that therefore this commonwealth is determined, as it doubts not it’s co-states are, to submit to undelegated & consequently unlimited powers in no man, or body of men on earth: that it ought not that in cases of an abuse of the delegated powers, the members of the general government being 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 fœderis) 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 nevertheless this commonwealth from motives of regard & respect for it’s co-states has wished to communicate with them on the subject; that with them alone it is proper to communicate, they alone being parties to the compact, & solely authorised to judge in the last resort of the powers exercised under it; Congress being not a party, but merely the creature of the compact & subject as to it’s assumptions of power to the final judgment of those by whom & for whose use itself and it’s powers were all created and modified, that if those acts before specified should stand, these conclusions would flow from them; that the General government may place any act they think proper on the list of crimes and punish it themselves whether enumerated or not enumerated by the constitution as cognizable by them, that they may transfer its cognisance to the President or any other person, who may himself be the accuser, counsel, judge & jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, & his breast the sole record of the transaction: that a very numerous & valuable description of the inhabitants of these states being, by this precedent reduced as Outlaws to the absolute dominion of one man, and the barrier of the constitution thus swept away for us all, no rampart now remains against the will and the passions and the power of a majority in Congress, to protect from a like exportation or other more grievous punishment, the minority of the same body, the legislatures, judges, & governors, & counsellors of the states nor their other peaceable inhabitants who may venture to reclaim the constitutional rights and liberties of the states and the people, or who for other causes good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their elections or other interests public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment: but the citizen will soon follow, or rather has already followed; for already has a Sedition act marked him as it’s prey: that these and successive acts of the same character unless arrested at the threshold necessarily drive these states into revolution and blood and will furnish new calumnies against republican government and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism, free government is founded in jealousy and not in confidence, it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power that our constitution has accordingly so fixed the limits to which and no further our confidence may go: and let the honest advocate of confidence read the Alien and Sedition Acts, and say if the constitution has not been wise in fixing limits to the government it created and whether we should be wise in destroying those limits? Let him say what the government is, if it be not a tyranny which the men of our choice have conferred on the President and the President of our choice has assented to and accepted over the friendly strangers to whom the mild spirit of our country & it’s laws had pledged hospitality & protection: that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth and the forms and substance of law & justice: in questions of power then let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution. That this commonwealth does therefore call on it’s co-states for an expression of their sentiments on the acts concerning aliens and for the punishment of certain crimes, herein before specified, plainly declaring whether these acts are, or are not, authorised by the federal compact? And it doubts not that their sense will be so enounced as to prove their attachment unaltered to limited government whether general or particular; & that the rights & liberties of their co-states will be exposed to no dangers by remaining embarked in a common bottom with their own: But that however confident at other times this commonwealth would have been in the deliberate judgment of the co-states and that but one opinion would be entertained on the unjustiable character of the acts herein specified, yet it cannot be insensible that circumstances do exist, & that passions are at this time afloat which may give a bias to the judgment to be pronounced on this subject, that times of passion are peculiarly those when precedents of wrong are yielded to with the last caution, when encroachments of powers are most usually made & principles are least watched. That whether the coincidence of the occasion & the encroachment in the present case has been from accident or design, the right of the commonwealth to the government of itself in cases not [illegible] parted with, is too vitally important to be yielded from temporary or secondary considerations: that a fixed determination therefore to retain it, requires us in candor and without reserve to declare & to warn our co-states that considering the said acts to be so palpably against the constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the general government, but that it is to proceed in the exercise over these states of any & all powers whatever, considering this as seizing the rights of the states & consolidating them in the hands of the general government, with power to bind the states (not merely in the cases made federal casus fœderis but) in all cases whatsoever by laws not made with their consent, but by other states against their consent; considering all the consequences as nothing in comparison with that of yielding the form of government we have chosen & of living under one [struck out] deriving it’s powers by from it’s own will and not from our authority, this commonwealth, as an integral party, does in that case protest against such opinions and exercises of undelegated & unauthorised power, and does declare that recurring to it’s natural right of judging & acting for itself, it will be constrained to take care of itself, & to provide by measures of it’s own that no power not plainly & intentionally delegated by the constitution to the general government, shall be exercised within the territory of this commonwealth. that they will concur with this comm. in considering the said acts so palpably against the const. as to amount to an undisguised declarn. that that compact is not meant to be the measure of the powers of the genl. govmt, but that it will proceed in the exercise over these states of all powers whatsoever, that they will view this as seizing the right of the states & consolidating them in the hands of the genl govt with power assumed to bind the states (not merely in the cases made federal) but in all cases whatsoever, by laws made not with their consent but by others against their consent, that this would be to surrender the form of govmt we have chosen & to live under one deriving it’s powers from it’s own will and not from our authority 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 & will each take measures of it’s own providing that neither these acts nor any others of the government not plainly & intentionally authorized by the country to the genl govmt shall be exercised within their respective territories.

9. That the said committee be authorised to communicate by writing or personal conference, at any times or place whatever, with any person or persons who may be appointed by any one or more of the co-states to correspond or confer with them: & that they lay their proceedings before the next session of assembly: that the members of the said committee, while acting within the state, have the same allowance as the members of the General assembly, and while acting without the commonwealth, the same as members of Congress: and that the Treasurer be authorized, on warrants from the Governor, to advance them monies on account for the said services.

FAIR COPY

1.Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes,—delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever 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, its co-States forming, as to itself, the other party: that the 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 powers 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.

2.Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offences against the law of nations, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798, and intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” as also the act passed by them on the — day of June, 1798, intituled “An Act to punish frauds committed on the banks of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States each within its own territory.

3.Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

4.Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the — day of July, 1798, intituled “An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.

5.Resolved, That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that “the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808”: that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.

6.Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by said act intituled “An Act concerning aliens,” is contrary to the Constitution, one amendment to which has provided that “no person shall be deprived of liberty without due process of law” and that another having provided that “in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence,” the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defence, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force: that transferring the power of judging any person, who is under the protection of the laws, from the courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that “the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior”; and that the said act is void for that reason also. And it is further to be noted, that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive, and a negative on all Legislative powers.

7.Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.

8th.Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in the late federal compact, to be friendly to the peace, happiness, and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these States; and 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 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 fœderis,) 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 nevertheless, this commonwealth from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the general government may place any act they think proper on the list of crimes, and punish it themselves whether enumerated or not enumerated by the constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment the minority of the same body, the legislatures, judges, governors and counsellors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism—free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on our President, and the President of our choice has assented to, and accepted over the friendly strangers to whom the mild spirit of our country and its laws have pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, (not merely in the cases made federal, (casus fœderis,) but) in all cases whatsoever, by laws made, not with their consent, but by others against their consent; that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and 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.

9th.Resolved, That the said committee be authorized to communicate by writing or personal conferences, at any times or places whatever, with any person or persons who may be appointed by any one or more co-States to correspond or confer with them; and that they lay their proceedings before the next session of Assembly.

[1 ]The text in the first column is from the rough draft, and that in the second from a fair copy. The facsimile is the text actually moved by Breckenridge, adopted by the Kentucky legislature, and sent to the other state legislatures.

As early as April 26, 1798 (see ante. p. 411) Jefferson was predicting and disapproving of possible Alien and Sedition bills, and from that time his letters express the strongest dislike to those acts. Thoroughly opposed to disunion (see letter to John Taylor, VII, p. 430) yet believing these Federalist measures only initial steps towards a dictatorship or monarchy, Jefferson cast about him for some means of checking the project, and finally hit upon the now famous doctrine of nullification of Federal statutes by means of resolutions of state legislatures. No one better realized the hazard of such a doctrine than its inventor, as is indicated not merely by the guarded phrasing, (done with purpose as is shown by his letters to Madison, Taylor, and Nicholas, post,) but quite as much by the absolute secrecy with which his share in the whole attempt was kept for many years.

The resolutions were originally prepared for North Carolina, and their destination changed for reasons given in the letter to Nicholas, ante, p. 449.

Jefferson wrote to Madison:

“Monticello, November 17, 1798.

“I enclose you a copy of the draught of the Kentucky resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed to push matters to extremities, & yet may be free to push as far as events will render prudent.”

To Taylor he wrote:

“Monticello, Nov. 26, 1798.

“For the present I should be for resolving the alien & sedition laws to be against the constitution & merely void, and for addressing the other States to obtain similar declarations; and I would not do anything at this moment which should commit us further, but reserve ourselves to shape our future measures or no measures, by the events which may happen.”

The history of the resolutions Jefferson stated in a letter to John Cabel Breckenridge:

“Monticello, December 11, 1821.

“Dear Sir,—

Your letter of December 19th places me under a dilemma which I cannot solve but by an exposition of the naked truth. I would have wished this rather to have remained as hitherto, without inquiry, but your inquiries have a right to be answered. I will do it as exactly as the great lapse of time and a waning memory will enable me. I may misremember indifferent circumstances, but can be right in substance. At the time when the Republicans of our country were so much alarmed at the proceedings of the Federal ascendancy in Congress, in the Executive and the Judiciary departments, it became a matter of serious consideration how head could be made against their enterprises on the Constitution. The leading republicans in Congress found themselves of no use there, browbeaten as they were by a bold and overwhelming majority. They concluded to retire from that field, take a stand in their state legislatures, and endeavor there to arrest their progress. The Alien and Sedition laws furnished the particular occasion. The sympathy between Virginia and Kentucky was more cordial and more intimately confidential than between any other two States of republican policy. Mr. Madison came into the Virginia legislature. I was then in the Vice-Presidency, and could not leave my station; but your father, Colonel W. C. Nicholas, and myself, happening to be together, the engaging the co-operation of Kentucky in an energetic protestation against the constitutionality of those laws became a subject of consultation. Those gentlemen pressed me strongly to sketch resolutions for that purpose, your father undertaking to introduce them to that legislature, with a solemn assurance, which I strictly required, that it should not be known from what quarter they came. 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 had any objection to it being known that I had drawn them. I pointedly enjoined that it should not. Whether he had unguardedly intimated before to any one I know not, but I afterwards observed in the papers repeated imputations of them to me, on which, as has been my practice on all occasions of imputation, I have observed entire silence. The question, indeed, has never before been put to me, nor should I answer it to any other than yourself, seeing no good end to be proposed by it, and the desire of tranquility inducing with me a wish to be withdrawn from public notice. Your father’s zeal and talents were too well known to desire any additional distinction from the penning these resolutions. That circumstance surely was of far less merit than the proposing and carrying them through the legislature of his state. The only fact in this statement on which my memory is not distinct, is the time and occasion of the consultation with your father and Mr. Nicholas. It took place here I know, but whether any other person was present or communicated with is my doubt. I think Mr. Madison was either with us or consulted, but my memory is uncertain as to minor details. I fear, dear sir, we are now in such another crisis, with this difference only, that the judiciary branch is alone and singlehanded in the present assaults on the Constitution; but its assaults are more sure and deadly, as from an agent seemingly passive and unassuming. May you and your contemporaries meet them with the same determination and effect as your father and his did the ‘alien and sedition’ laws and preserve inviolate a constitution which, cherished in all its chastity and purity, will prove in the end a blessing to all the nations of the earth. With these prayers, accept those for your own happiness and prosperity.”

The resolutions, with those of Virginia of 1798 and 1799, produced an extensive pamphlet literature at the time, a bibliography of which is a distinct desideratum, and has since then been the cause of many publications. The most interesting arguments on the questions involved are those of Story, Calhoun, Van Holst, and Johnston, and minute histories of the Kentucky resolutions have been written by R. T. Durrett (Southern Bivouac, 1, 577, 658, 760), and by E. D. Warfield (New York: 1887).