Editorial Note: The Kentucky Resolutions of 1798
The Kentucky Resolutions of 1798
Editorial Note
For all the significance of the Kentucky Resolutions, Jefferson’s papers reveal little about their composition. This is due in part to his caution about what he revealed in his letters at the time he wrote the resolutions. Too, for the remainder of his life he showed little interest in avowing or explaining his original authorship of the document. He did not seem displeased with the changes made to the resolutions after they left his hands and was content to have the attribution of authorship lie elsewhere. He in fact called them “the Kentuckey resolves” before he even knew of their adoption by both houses of the Kentucky legislature (TJ to Madison, 17 Nov. 1798). To compound the weakness of the documentary record, when he did recount, years later, the creation of the resolutions, his recollection was faulty and he recast the story to give John Breckinridge a role in the earliest manifestation of the resolutions that the Kentucky politician did not play. Moreover, after Jefferson’s death some of his admirers, uncomfortable with theoretical and practical consequences of nullification, rather than establishing and developing the story of his authorship sought to distance themselves and him from his draft resolutions of 1798.
For many years Jefferson’s authorship was known only to a limited number of confidants. In 1814 John Taylor named Jefferson as the author of the resolutions, but without belaboring the issue (Taylor, An Inquiry into the Principles and Policy of the Government of the United States [Fredericksburg, Va., 1814], 174, 649). Jefferson later acknowledged that through the years he saw “repeated imputations” in newspapers, but, “as has been my practice on all occasions of imputation, I have observed entire silence” (TJ to Joseph Cabell Breckinridge, 11 Dec. 1821). Only late in his life would he feel a need to acknowledge his composition of the resolutions to anyone outside the circle of those who already knew. In 1821 a piece that he allowed to appear in the Richmond Enquirer led to assertions by that newspaper’s zealous editor, Thomas Ritchie, that Jefferson was the author of the Kentucky Resolutions (Richmond Enquirer, 3 Aug., 4 Sep. 1821; Malone, Jefferson, 6:357–9). In the wake of Ritchie’s announcement Joseph Cabell Breckinridge, the son of John Breckinridge, who had introduced the resolutions in the Kentucky House of Representatives in 1798 and died eight years afterward, wrote Jefferson seeking clarification. The son was puzzled that his father would seemingly accept credit for something so important if he had not in fact crafted the resolutions. Some years before, when the younger Breckinridge asked for information about his father’s political career, Jefferson had said nothing about them (J. C. Breckinridge to TJ, 14 May 1815, 19 Nov. 1821, and TJ to Breckinridge, 12 June 1815). On 11 Dec. 1821, declaring that the direct question from Breckinridge had put him “under a dilemma which I cannot solve but by an exposition of the naked truth,” Jefferson said that “I would have wished this rather to have remained as hitherto, without inquiry, but your inquiries have a right to be answered.” Admitting that he had penned the resolutions, he noted that despite the rumors in newspapers “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.”
Still, Jefferson’s role in the creation of the Kentucky Resolutions continued to be poorly understood. After his death, as nullification and states’ rights became central issues in the early 1830s, his grandson Thomas Jefferson Randolph was prompted to seek evidence of Jefferson’s authorship of the resolutions. Randolph examined “the MSS. in my possession,” noted the differences between the eighth and ninth resolutions as Jefferson wrote them and as they were adopted by the Kentucky assembly under the elder Breckinridge’s stewardardship, and noticed his grandfather’s use of the term “nullification.” Randolph also furnished a copy of Jefferson’s “original draught”—probably Document ii—which newspapers published in 1832. Then in the 1850s H. A. Washington’s edition of Jefferson’s papers and Henry S. Randall’s Life of Thomas Jefferson printed Jefferson’s version of the resolutions and helped fix the document’s place in the Jefferson canon (United States Telegraph, 12 Mch., 4 Apr. 1832; Niles’ Weekly Register, 43 [1832], suppl. 22–4; Malone, Jefferson, 3:406n).
Jefferson put no date on his draft resolutions, and the only thing certain about when he composed them is that some version was in the hands of Wilson Cary Nicholas, and available to be given to John Breckinridge, by the time Nicholas wrote Jefferson on 4 Oct. 1798. Jefferson and Madison could have discussed the strategy that underlay the resolutions on 2–3 July when Jefferson stopped at Montpelier on his way home from Philadelphia (Madison, Papers, 17:186; Malone, Jefferson, 3:400; , 2:987). But the earliest extant draft of the resolutions (Document i) contains references to the approval on 14 July 1798 of the Sedition Act, which Jefferson referred to in the resolutions by its official title, “An Act in addition to the act, entitled ‘An Act for the punishment of certain crimes against the United States.’” Jefferson therefore wrote the resolutions sometime after receiving at Monticello news of the passage of the Sedition Act, despite the fact that he left blank the 27 June date of approval of the act concerning frauds on the Bank of the U.S. and gave the date of the Alien Friends Act, which became law on 25 June, as “the day of July 1798.” He referred to the dates of the three acts in exactly the same way in his fair copy (Document ii), which means that little time passed between his composition of Document i and his making the clean copy, or that he simply did not take the trouble to find and fill in the missing information.
The evidence is far from conclusive, but some characteristics of Document i suggest that Jefferson may have begun it as a fair copy of a now-missing earlier draft. He first wrote the original core of resolutions in Document i (those numbered 1–2, 4–5, and 7–9, along with the canceled resolution reported in note 2 to Document i) in a neat hand without extensive redrafting as he wrote. In that initial casting of the document he eschewed abbreviations except for “&” and “US,” and in the opening phrase of the fourth resolution, the first time the word appears, he printed the word “Alien” rather than writing it in cursive. These signs may mean that he worked from a composition draft and originally intended Document I to be the final version. If so, Document I became a draft nonetheless, Jefferson adding what became the third resolution on a separate sheet, crowding the sixth resolution in a smaller hand in space below the seventh, making wholesale changes to the eighth, and numbering the resolutions (see textual notes to Document i). Document ii then became the fair copy, a neat rewriting of the emended Document i.
After Wilson Cary Nicholas informed Jefferson on 4 Oct. 1798 that John Breckinridge could furnish a means of introducing the resolutions in the Kentucky legislature, Jefferson replied that “I had imagined it better those resolutions should have originated with N. Carolina. but perhaps the late changes in their representation may indicate some doubt whether they would have passed” (TJ to Nicholas, 5 Oct. 1798). It seems unlikely, however, that Jefferson had North Carolina in mind when he penned the resolutions. In the resolves he almost exclusively characterized the state that would pass them as “this commonwealth,” a term that had no particular reference to North Carolina. Moreover, in his third resolution Jefferson, discussing encroachments on religious freedom, noted that “this state, by a law passed on the general demand of it’s citizens, had already protected” religious exercise and opinion “from all human restraint or interference.” No North Carolina statute of the time, and for that matter none passed by Kentucky, matched that description. The reference actually seems to point to the Statute for Establishing Religious Freedom drafted by Jefferson and passed into law in Virginia in 1785. If that is the case, then Virginia was the “commonwealth” Jefferson had in mind as he drafted the resolutions.
This notion is reinforced by the fact that he sent the document to Nicholas. A member of the Virginia House of Delegates from Albemarle, Nicholas in other instances conveyed key instruments to that house, notably Jefferson’s petition on the election of jurors and Madison’s draft resolves that late in the year became the Virginia Resolutions. The decision to send Jefferson’s resolutions to another state may in the end have been determined by legislative calendars. In 1798 the House of Delegates did not meet until December, but earlier, in August, Virginia’s Republicans thought that they might be able to have the legislature convened early, as soon as the first days of September, before some Federalist members could arrive. At Charlottesville on 1 Sep. “a vast number of the inhabitants of Albemarle” met to consider the constitutionality of the Alien and Sedition Acts, overwhelmingly adopting resolutions that “went to reprobate those diabolical acts” and calling for a remonstrance to be sent to the legislature. The attempt at an early convening date failed, however, and the assembly did not gather until its usual time late in the year. If Jefferson composed his resolutions with the expectation that the assembly would convene early, not long after the beginning of September, he very likely wrote them in August. Then as the hope of an early meeting of the legislature faded, he and Nicholas probably looked at other states and left the way open in Virginia for Madison’s resolutions, written a little later than Jefferson’s (Malone, Jefferson, 3:401; Virginia Herald, 18 Sep. 1798; note to Petition to the General Assembly of Virginia, [2 or 3 Nov. 1798]; TJ to Nicholas, 29 Nov. 1798).
Nicholas’s letter to Jefferson on 4 Oct. 1798 does not illuminate the extent to which they might have anticipated sending the resolutions to Kentucky. Nicholas emphasized the fortuitous availability of John Breckinridge to take the resolutions under his wing, and Jefferson’s reply on 5 Oct. confirms that he had not conceived the resolutions with Kentucky in mind. Unfortunately, when he wrote to Breckinridge’s son decades later Jefferson said the opposite, confessing a weak recollection of some other points but declaring that he, Nicholas, and the elder Breckinridge had conferred before he wrote the resolutions, the intent from the start being to introduce them in the legislature of Kentucky. For a long time Jefferson’s 1821 letter to Joseph Cabell Breckinridge confused historians’ understanding of the circumstances surrounding the writing of the resolutions. Compounding the problem, for much of the nineteenth century it was mistakenly thought that Jefferson had written that letter not to Breckinridge’s son but to a son of Wilson Cary Nicholas’s brother George (see Adrienne Koch and Harry Ammon, “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” , 3d ser., 5 [1948], 149–50; Paul Leicester Ford printed the 1821 letter as a footnote to the Kentucky Resolutions: Ford, 7:290–1n).
By the time Wilson Cary Nicholas wrote to him on 4 Oct. 1798 Jefferson would have had some notion of the favorable ground that Kentucky presented at that moment, for on the first of the month he received Samuel Brown’s 4 Sep. letter from Lexington. While it is not clear which local resolves Brown sent to Jefferson with that letter, they along with Brown’s characterization of activity in the state would have given the impression that Kentucky was afire over the Alien and Sedition Acts. Resolutions adopted in Clark and other counties appeared in print in Lexington in time for Brown to have enclosed them to Jefferson, and in his letter Brown wished that the legislature would meet and “give such solemnity to the voice of the people, as will arrest the attention of our infatuated Rulers” (Kentucky Gazette, 1, 8, 29 Aug. 1798; Brown to TJ, 4 Sep. 1798). On 13 Aug. in Lexington, George Nicholas addressed an outdoor meeting attended by several thousand people, and John Breckinridge, who corresponded with Monroe that summer although not with Jefferson, was involved in the creation of some of the local resolutions. In the spring of 1798 Breckinridge had been elected to the Kentucky House of Representatives from Fayette County, where he lived outside Lexington, but his papers contain a draft of the resolutions adopted by an adjoining county, Woodford, on 6 Aug., and a draft set of resolves for Clark different from those adopted in that nearby county on 24 July (DLC: Breckinridge Family Papers). Coughing blood, very likely suffering from tuberculosis, Breckinridge left home on 22 Aug. for a recuperative trip to Sweet Springs, Virginia. Little is known of his itinerary on that journey other than what Wilson Cary Nicholas mentioned to Jefferson on 4 Oct. (Lowell H. Harrison, John Breckinridge: Jeffersonian Republican [Louisville, 1969], 72, 74–5, 89n, 110; James Morton Smith, “The Grass Roots Origins of the Kentucky Resolutions,” , 3d ser., 27 [1970], 221–45; Kentucky Gazette, 1, 8 Aug. 1798; ).
Nicholas probably had in his possession, and “put into the hands of” Breckinridge, some version of Jefferson’s fair copy of the resolutions. An undated copy in Breckinridge’s handwriting and retained within his papers follows Jefferson’s text with almost no substantive variation (see notes to Document ii). If Breckinridge saw the fair copy itself, the document was subsequently returned to Jefferson’s papers. Jefferson sent a press copy to Madison in November 1798 (see below), but given its condition, even when new, it seems unlikely that Breckinridge and Nicholas used the press copy as their source for the text. Whether Breckinridge made his copy of the resolutions at Nicholas’s house or took a version of Jefferson’s fair copy with him back to Kentucky, by 10 Oct. Nicholas in a letter to Breckinridge referred to “the paper that you have,” saying also that Jefferson regretted not seeing the Kentucky traveler but understood the reasons for their not meeting. Nicholas noted too that Jefferson “suggests nothing further upon the subject” (Harrison, Breckinridge, 76, 89n).
It was after Breckinridge copied them, therefore, that Jefferson’s resolutions became the Kentucky Resolutions—that is to say, as illustrated by Document ii, his long, substantive eighth resolution and short, procedural ninth one became a short and procedural eighth resolve followed by a substantive final resolution that rearranged Jefferson’s eighth and omitted, most notably, the reference to nullification. That recasting of the key section occurred before Breckinridge introduced the resolutions in the Kentucky House of Representatives on 8 Nov., to judge from a broadside version printed in Kentucky (Evans, No. 48494; see notes to Document ii). One change that did occur during the consideration of the resolutions by the legislature was the addition of the word “tamely” in the phrase “tamely to submit” in the ninth resolution (see Document ii, note 4).
Breckinridge returned to Kentucky before the seventh General Assembly convened in Frankfort early in November. In his address to the assembly on 7 Nov., Governor James Garrard noted that the state, “being deeply interested in the conduct of the national government, must have a right to applaud or to censure that government, when applause or censure becomes its due.” Paying particular notice to the Alien Friends Act, the Sedition Act, and Kentucky’s reputation as a place “if not in a state of insurrection, yet utterly disaffected to the federal government,” Garrard urged the legislature to declare the state’s support for the U.S. Constitution while “entering your protest against all unconstitutional laws and impolitic proceedings” (Kentucky Gazette, 14 Nov. 1798). The same day, Breckinridge gave notice in the state House of Representatives that he would bring in resolutions addressing that theme of the governor’s message. Introduced on the 8th and immediately considered by a committee of the whole, the resolutions passed the House on 10 Nov., received the unanimous concurrence of the state senate three days later, and were approved by Garrard on the 16th (see descriptive note to Document ii). It was in that form, as the legislature passed them, that the Kentucky Resolutions would be known until Thomas Jefferson Randolph delved into his grandfather’s papers in the 1830s.
Nothing in Jefferson’s correspondence indicates that he consulted Madison about the resolutions before they went to Kentucky with Breckinridge. On 5 Oct., in fact, he asked Nicholas to discuss them with Madison, which implies that such a consultation had not yet occurred. The first unmistakable reference to the document in his correspondence with Madison came on 17 Nov. 1798, when he enclosed “a copy of the draught of the Kentuckey resolves.” That enclosure seems likely to have been the press copy of Document ii (and see Madison, Papers, 17:175–81; the presumption that Jefferson had written the 17 Nov. letter in 1799 rather than 1798 caused some confusion even for Madison in later years as he attempted to sort out what Jefferson had sent him about the resolutions: Gaillard Hunt, The Writings of James Madison, 9 vols. [New York, 1900–10], 9:394–6n). The press copy is in the Rives Collection of Madison’s papers at the Library of Congress. In that collection also is another copy of the resolutions, a later, handwritten composite incorporating both Jefferson’s text and that adopted by the Kentucky legislature, using different scripts and other means to delineate the two texts. Some historians, noting the provenance of this composite document within a section of Madison’s papers, have concluded that Jefferson enclosed it along with the press copy in his letter of 17 Nov. in order to show Madison the changes made to the resolutions before their passage (Koch and Ammon, “Virginia and Kentucky Resolutions,” 159; Malone, Jefferson, 3:406). That, however, seems nearly impossible. Whoever made the composite document used a printed version of the Kentucky Resolutions that dated no earlier than 10 Nov. 1798, and notes written at the beginning of the document, evidently contemporary with its creation, demonstrate a knowledge of the Virginia Resolutions (passed in December 1798). The composite document is the result of a comparison of a printed copy with not just any version of Jefferson’s text, but with the press copy of Document ii, the composite distinguishing even those places in the press copy where individual lines were lost at the edges of the sheets due to imperfect pressing. Nothing about the handwriting of the composite, nor any endorsement or notation on it, indicates that Jefferson sent or Madison received the document. It seems most plausible to associate the composite not with Jefferson and Madison in 1798 but with William Cabell Rives (1793–1868). An ardent protegé of first Jefferson and then Madison, Rives studied law under Jefferson and in the 1820s, before embarking on a career in politics and diplomacy, became a political associate of Thomas Ritchie, the editor of the Enquirer. A devotee of Madison’s political thought, Rives was an early editor of Madison’s letters and undertook a multivolume biography that was only partially completed at the time of Rives’s death (; Drew R. McCoy, The Last of the Fathers: James Madison and the Republican Legacy [Cambridge, 1989], 327–67). Involvement by Rives in the creation of the composite document would explain how its author had access to the press copy Jefferson sent in November 1798 as well as the fact that the press copy and the later composite ended up in proximity to one another in Rives’s collection of Madison documents.
Although the porous documentary record is largely to blame, a thorough understanding of Jefferson’s resolutions has also been impeded by the fact that even some of his strongest advocates, for reasons having to do with the sectional conflict resulting eventually in secession and civil war, have been loathe to embrace his authorship of the document—especially that portion of his eighth resolution that dealt with nullification. Jefferson was gone by the time sectional friction and political events focused attention on the use he had made of the concept and term “nullification,” and it fell to Madison to explain. Striving in 1830 and after to forestall southern nullifiers who depicted Jefferson as their progenitor, Madison, who in any event surely knew the resolutions adopted by the Kentucky General Assembly better than he knew Jefferson’s draft, initially denied that his friend had used the word (McCoy, Last of the Fathers, 139–151; Merrill D. Peterson, The Jefferson Image in the American Mind [New York, 1960], 51–9; William W. Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816–1836 [New York, 1966], 207–10; Hunt, Writings, 9:383–403). Later, Dumas Malone attributed Jefferson’s draft resolutions to “impatience” and an “excess of zeal in defense of freedom.” Expressing relief that “wise counsel” moderated the resolutions, Malone deemed it “a pity” that Madison had not written the original Kentucky Resolutions as well as those adopted in Virginia (Malone, Jefferson, 3:408). The regret of a towering Jefferson scholar that his subject had actually penned the Kentucky Resolutions stands in contrast to the detailed analysis scholars have given to Jefferson’s authorship of other major documents. Malone considered Jefferson’s resolutions uncharacteristically “prolix and repetitious” (same, 405), overlooking their similarity to the mannered and repetitious statements of the Declaration of Independence and their function as a quasi-legal document, a structured set of indictments and explications meant to justify extraordinary action. So meticulous was Jefferson in challenging the legality of the federal statutes in question, in the margins of his draft he changed “law,” which might imply a legitimacy of natural law and right, to “act,” which did not carry the same inherent authority (see notes 2, 4, and 8, Document I). He marshaled a variety of arguments, too, in his brief against the Alien and Sedition Acts. Some, such as the fifth resolution’s creative indictment of the Alien Friends Act because it contradicted the constitutional protection of the slave trade until 1808, surely had no chance of standing on their own. But as with the Declaration’s long list of charges against the crown, the combined array of arguments in the resolutions, the repeated intonation that the laws were “void & of no force,” had cumulative impact. And by his actions Jefferson showed that he did not mind if portions of what he had written fell by the wayside. He accepted without protest the Kentuckians’ modifications, including the omission of the tactic of “nullification,” and in the bargain never explained what he meant by asserting a state’s power to annul federal law.