ing
conflicting jurisdictions, as between the nation and the states, but
that is a different matter from assuming to examine into the wisdom of
the legislation itself. The one function might, possibly, pass by
courtesy as judicial; the other is clearly legislative.

This distinction only developed after Marshall's death, but the
resentment which impelled Marshall to annul an act of Congress was
roused by the political conflict which preceded the election of 1800, in
which Marshall took a chief part. Apparently he could not resist the
temptation of measuring himself with his old adversary, especially as he
seems to have thought that he could discredit that adversary without
giving him an opportunity to retaliate.

In 1798 a Federalist Congress passed the Alien and Sedition Acts, whose
constitutionality no Federalist judge ever doubted, but which Jefferson
considered as clearly a violation of the fundamental compact, since they
tended to drive certain states, as he thought, into "revolution and
blood." Under this provocation Jefferson proclaimed that it was both the
right and the duty of any state, which felt itself aggrieved, to
intervene to arrest "the progress of the evil," within her territory,
by declining to execute, or by "nullifying," the objectionable statutes.
As Jefferson wrote the Kentucky Resolutions in 1798 and was elected
President in 1800, the people at least appeared to have sustained him in
his exposition of the Constitution, before he entered into office.

At this distance of time we find it hard to realize what the election of
1800 seemed to portend to those who participated therein. Mr. Jefferson
always described it as amounting to a revolution as profound as, if less
bloody than, the revolution of 1776, and though we maybe disposed to
imagine that Jefferson valued his own advent to power at its full worth,
it must be admitted that his enemies regarded it almost as seriously.
Nor were they without some justification, for Jefferson certainly
represented the party of disintegration. "Nullification" would have been
tantamount to a return to the condition of the Confederation. Besides,
Jefferson not so many years before had written, in defence of Shays's
rebellion, that the tree of Liberty could never flourish unless
refreshed occasionally with the blood of patriots and tyrants. To most
Federalists Jefferson seemed a bloodthirsty demagogue. In 1796 Oliver
Ellsworth had been appointed Chief Justice by Ge