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.7 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, "Force is not thought of by any one" (ibid., p. 42). James Barbour: "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.

The Virginia House of Delegates referred the resolutions of the other States to a committee of which Madison was the chairman. Madison's famous report defended the resolutions and contained an elaborate argument against the constitutionality of the Alien and Sedition Laws. He reasserted the right of the States to interpose in "the case of a deliberate, palpable and dangerous breach of the Constitution by the exercise by the Federal government of powers not granted to it, without, however, stating specifically, the manner in which that interposition should be made.

He said that such action, "whether made before or after judicial decisions" upon the validity of the laws in question, can

not

"be deemed, in any point of view, an assumption of the office of a judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, while that will and the opinion continue unchanged."

He stated that "the necessary and proper measures" of cooperation which had been suggested to the other States were

means

"strictly within the limits of the Constitution. The legislatures of the States might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or they might have represented to their respective Senators in Congress their wish that two-thirds thereof would propose an explanatory amendment to the Constitution; or two-thirds of themselves, if such had been their option, might by an application to Congress, have obtained a Convention for the same object. These several means, though not equally eligible in themselves, nor probably to the States, were all constitutionally open for consideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other States a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation."

The legislature adopted the report and a final resolution adhering to their original resolutions.11

The advocates of nullification and secession have referred to these proceedings as conclusive evidence of the opinions of Jefferson and Madison in support of the doctrines which were advocated later by Calhoun and Davis. The claim, however, has no foundation. Madison, during the time of nullification, expressly denied the claim that the proceedings of the legislature of Virginia advocated a legal right of nullification; and pointed out that the proceedings suggested in his report and resolution were peaceable measures, the right to exercise which under the Constitution was universally conceded.12 After the adoption of the resolutions and the report, the Sedition Law was enforced in the most offensive manner in Virginia without any obstruction by the State.13

The language of the Virginia resolutions is more ambiguous than that in the report, and this was undoubtedly intentional, in order that they might suggest a threat, the execution of which was never intended. The Kentucky resolutions, especially that of

11 The Virginia Report of 1779-1800, touching the Alien and Sedition Laws, &c., Philadelphia, 1850, p. 233.

12 Madison's letter to Edward Everett, August, 1830, ibid., 249-256. See also other statements by Madison, quoted in Benton's Thirty Years' View, vol. i, pp. 354–360.

18 By the trial, conviction and sentence of Callender, the conduct of which was one of the grounds for the impeachment of Judge Chase. Governor Monroe said, in his message to the Virginian General Assembly, in December, 1800: "In connection with this subject it is proper to add, that, since your last session, the sedition law, one of the acts complained of, has been carried into effect in this commonwealth by the decision of a federal court. I notice this event not with a view of censuring or criticising it. The transaction has gone to the world, and the impartial will judge of

it as it deserves. I notice it for the purpose of remarking that the decision was executed with the same order and tranquil submission on the part of the people as could have been shown by them on a similar occasion to any the most necessary, constitutional and popular acts of the government. The General Assembly and the good people of this Commonwealth have acquitted themselves to their own consciences and to their brethren in America in support of a cause which they deem a national one, by the stand which they made, and the sentiments they expressed of these acts of the general government; but they have looked for a change in that respect, to a change in the public opinion, which ought to be free; not to measures of violence, discord and disunion, which they abhor." Benton's Thirty Years' View, vol. i, p. 354.

1799, were stronger, but the right therein maintained seems clearly to have been rather the "natural right" of revolution, than the assertion of a legal right recognized by the Constitution.

The design of Jefferson was, however, accomplished, as he undoubtedly expected, by the means contemplated by the Constitution, without the use of any extraordinary proceedings.

Petitions for the repeal of the obnoxious statutes poured into Congress from all parts of the Union.14 The powers granted by the Alien Law seem never to have been exercised. The prosecutions and convictions under the Sedition Law had no effect except to increase the unpopularity of the party that had passed it. Jefferson was chosen to the presidency a year after the adoption of the last Kentucky Resolution. Before his inauguration the two acts had expired by their terms after a futile attempt to continue the only one of them which had been applied.15 He pardoned all convicts under the Sedition Law,16 and the fines imposed upon them were repaid afterwards under votes of Democratic Congresses.17 Neither Jefferson nor Madison afterwards had occasion to reassert the doctrines promulgated in the famous report and resolutions. But those papers remained the texts to which the expounders of State rights appealed till the rights of secession and nullification had both been tried and both had failed.

§ 33. The Doctrine of Nullification.

Struck by the example and taking up the cue of Jefferson, when the South was injured by an unjust and oppressive tariff, Calhoun expanded and set forth the doctrine of nullification for her relief. The reputation of its author and the solemnity of the events which it occasioned seem to demand that it be fully and fairly stated in his own language:

"The great and leading principle is, that the General Government emanated from the people of the several states, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all of the people forming one aggregate political

14 McMaster's History, vol. ii, p. 423. 15 Ibid., p. 532.

16 Tucker's Life of Jefferson, vol. ii,

17 Act of July 4, 1840, 6 St. at L., p. 802; Act of June 17, 1844, 6 St. at L., p. 924.

p. 120.