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.

13 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 prosecu

tions 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.

community; that the Constitution of the United States is, in fact, a compact, to which each state is a party, in the character already described; and that the several states, or parties, have a right to judge of its infractions; and in case of a deliberate, palpable, and dangerous exercise of power not delegated, they have the right, in the last resort, to use the language of the Virginia Resolutions, to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them.' This right of interposition, thus solemnly asserted by the State of Virginia, be it called what it may-State-right, veto, nullification, or by any other name I conceive it to be the fundamental principle of our system, resting on facts historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political or moral truth whatever; and I firmly believe that on its recognition depend the stabilty and safety of our political institutions."1

"To realize its perfection, we must view the General Government and those of the states as a whole, each in its proper sphere independent; each perfectly adapted to its respective objects; the states acting separately, representing and protecting the local and peculiar interests; acting jointly through one General Government, with the weight respectively assigned to each by the Constitution, representing and protecting the interest of the whole, and thus perfecting, by an admirable, but simple arrangement, the great principle of representation and responsibility, without which no government can be free or just. To preserve this sacred distribution as originally settled, by coercing each to move in its prescribed orb, is the great and difficult problem, on the solution of which the duration of our Constitution, of our Union, and, in all probality, our liberty depends. How is this to be effected?

The question is new when applied to our peculiar political organization, where the separate and conflicting interests of society are represented by distinct but connected governments; but it is, in reality, an old question under a new form, long since perfectly solved. Whenever separate and dissimilar interests have been separately represented in any government; whenever the sovereign power has been divided in its exercise, the experience and wisdom of ages have devised but one mode by which such political organization can be preserved the mode adopted in England, and by all governments, ancient and modern, blessed with constitutions deserving to be called free to give to each

§ 33. 1 Mr. Calhoun's address, stating his opinion of the relation which the States and the general government

bear to each other. Fort Hill, July 26, 1831. Calhoun's Speeches, 1st ed., 1843, p. 28.

co-estate the right to judge of its powers, with a negative or veto on the acts of the others, in order to protect against encroachments the interests it particularly represents: a principle which all of our Constitutions recognize in the distribution of power among their respective departments, as essential to maintain the independence of each, but which, to all who will duly reflect on the subject, must appear far more essential, for the same object, in that great and fundamental distribution of powers between the General and State Governments. So essential is the principle, that to withhold the right from either, where the sovereign power is divided, is, in fact, to annul the division itself, and to consolidate in the one left in the exclusive possession of the right all powers of government; for it is not possible to distinguish, practically, between a government having all power, and one having the right to take what powers it pleases. Nor does it in the least vary the principle, whether the distribution of power between co-estates, as in England, or between distinctly organized but connected governments, as with us. The reason is the same in both cases, while the necessity is greater in our case, as the danger of conflict is greater where the interests of a society are divided geographically than in any other, as has already been shown." 2

"So far from extreme danger, I hold that there never was a free state in which this great conservative principle, indispensable to all, was ever so safely lodged. In others, when the co-estates representing the dissimilar and conflicting interests of the community came into contact, this only alternative was compromise, submission, or force. Not so in ours. Should the General Government and a state come into conflict, we have a higher remedy: the power which called the General Government into existence, which gave it all its authority, and can enlarge, contract, or abolish its powers at its pleasure, may be invoked. The states themselves may be appealed to, three-fourths of which, in fact, form a power, whose decrees are the Constitution itself, and whose voice can silence all discontent. The utmost extent, then, of the power is, that a state acting in its sovereign capacity, as one of the parties to the constitutional compact, may compel the government, created by that compact, to submit a question touching its infraction to the parties who created it; to avoid the supposed dangers of which, it is proposed to resort to the novel, the hazardous, and, I must add, fatal project, of giving to the General Government the sole and final right of inter

2 Mr. Calhoun's address, stating his opinion of the relation which the States and the general government bear to

each other. Fort Hill, July 26, 1831. Calhoun's speeches, 1st ed., 1843, pp. 30-31.