If we look into Mr. Madison's reasons in 1799, for objecting to the Supreme Court as the arbiter, we shall find that he is far from asserting that it is only in those "instances of usurped power which the forms of the Constitution would never deem within the control of the judicial departments," (tariff and internal improvements,) where he thinks the States ought to be the rightful judges. He distinctly means, that in every case where the judiciary and a particular State shall differ, as to the validity of a power exercised by Congress, which such State shall deem a palpable breach of the Constitution, the State is to judge and not the Supreme Court. After stating the consequences of "raising the decision of the judiciary above the auhority of the sovereign parties to the Constitution," he proceeds— "The resolution supposes that dangerous powers not delegated (meaning the alien and sedition laws,) may not only be usurped and executed by the other departments, but that the judicial

department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution, (alluding to the same alien and sedition laws,) and, consequently, that the ultimate right of the parties to the Constitution to judge whether the compact had been dangerously violated, must extend to violations by the judiciary as well as by the executive or legislature." Now if there be a deduction from this passage which is irresistible, it is certainly this: That to the parties to the compact, and not to the judiciary, belongs the right to determine in every case where there is a difference of opinion, for if the State shall deem a power dangerous and not delegated, there is, according to Mr. Madison, a judicial violation of the Constitution, if the judges "sanction" such a power. The judges, honestly no doubt, thought the alien and sedition laws constitutional, but still Mr. Madison regarded them as an instance of such a judicial violation as would authorize the "ultimate right of the parties to the Constitution to judge whether the compact has been dangerously violated." In 1830, Mr. Madison says "the judiciary alone is the expounding provision in the Constitution, and none of the parties can rightfully renounce it more than any other part of the Constitution." It is the arbiter which is to prevent "an appeal to the sword" and a recurrence to revolution. But in 1799, when the judges honestly expounded the alien and sedition laws as constitutional, Mr. Madison pronounces them as "sanctioning dangerous powers beyond the grant of the Constitution." In 1830, the Supreme Court is the only sole expositor of the Constitution. In 1799, the States are the only rightful judges. If this be not inconsistency, then the English language is to us, at least, unintelligible.

A distinguished statesman and friend of ours has made some observations on the other part of Mr. Madison's extraordinary letter, which he permits us to use. They are so good that we prefer to give his own words rather than by an abridgement to impair the force of what he has said.

"In support of the extraordinary position that the Virginia resolutions of '98, in maintaining the right of a State to interpose for arresting the progress of an unconstitutional law," intended only to assert the right of interposing by "reason and argument," and of arresting the progress of a law by the force of public opinion-the answers of the several States which protested against these resolutions, have been appealed to by Mr. Madison, in order to shew that they were so understood at the time. According to our reading of these protests, they are utterly inconsistent with the idea that the Virginia resolutions contained nothing more than a harmless appeal to public opinion. We incline to think, that if such had been their acknowledged character, no objection what

ever would have been made to them by any State in the Union, and we hardly think it would have been found necessary for Mr. Madison, to prepare and publish an elaborate Report of fifty pages, to establish the right of the Legislature of Virginia to express an opinion. To see how far this idea is sustained by the resolutions of the other States, we will make a few extracts from them.

"Extract from the Protest of the State of Rhode-Island against the Virginia Resolutions of 1798.

'1st. Resolved, That the Constitution of the United States vests in the Federal Courts exclusively, and in the Supreme Court of the United States ultimately, the authority of deciding on the constitutionalty of any act of the Congress of the United States.

2dly. That, for a State Legislature to assume that authority, [that is, to decide judicially on the binding efficacy of acts of Congress] would be,

1st. Blending together Legislative and Judicial powers.

2dly. Hazarding an interruption of the peace of the States by civil discord in case of a diversity of opinions among the State Legislatures, each State having no resort for vindicating its own opinions but by the strength of its own arms.'

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"And yet Mr. Madison now says, that if the Virginia resolutions had been regarded as leading to such consequences, it must be presumed that this would have been a conspicuous object of denunciation.' Here, however, we see that this suposed tendency of the Virginia resolutions was most conspicuously denounced by the State of Rhode-Island, which considered them not as a mere harmless expression of opinion, but as the assumption of judicial power to be sustained by force.

"Protest of Massachusetts.

This Legislature are persuaded that the decision of all cases of law and equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the Judicial Courts of the United States, and that the people have not constituted the State Legislatures the judges of the acts or measures of the Federal Government,' &c.

But should Virginia persist in the assumption of the right to declare the acts of the National Government unconstitutional, and should she oppose, successfully, HR FORCE AND WILL to those of the nation, the Constitution would be reduced to a mere cypher— to the form and pageantry of authority, without the energy of power,' &c.

"Here it will be perceived, that Massachusetts considered Virginia as assuming a judicial authority over acts of Congress alleged to be unconstitutional-to be followed up by sustaining her decision by force— and in this view of the subject, the Resolutions of '98 were denounced by Massachusetts.

"Protest of New-Hampshire.

That the State Legislatures are not the proper tribunal to determine the constitutionality of the laws of the General Governnient, that the duty of such decision is properly and exclusively confided to the Judicial department.' ·

"Protest of Vermont.

Resolved, That the General Assembly of the State of Vermont do highly disapprove of the Resolutions of the General Assembly of the State of Virginia, as being unconstitutional in their nature and dangerous in their tendency. It belongs, not to a State Legislature in decide on the constitutionality of laws made by the General Government, this power being exclusively vested in the Judiciary Courts of the Union,' &c.

"It will be here seen that these Resolutions are, throughout, entirely inconsistent with the idea that the Virginia resolutions coutained nothing more than a mere appeal to public opinion; they were, on the contrary, regarded at the time as containing the distinct assertion of the right of a State to decide authoritatively on the constitutional validity of an act of Congress-which 'unauthorized assumption of power,' it was supposed, would lead to a resort to force; and was, on that account, 'most conspicuously denounced' by the protesting States. It was in reply to these protests, that Mr. Madison produced his celebrated REPORT; and in what spirit does he reply to them? Does he attempt to allay the apprehensions of the protesting States, by declaring that they had entirely mistaken the true intent and meaning of the Virginia resolutions?—that they did not intend to assert the right of a State 'to judge of infractions of the Constitution?' or to determine that certain acts of Congress are unconstitutional, and, therefore, void? That Virginia, on the contrary, admitted (what Mr. Madison now contends for) that the Supreme Court had the exclusive jurisdiction of all such questions, and were the arbiters appointed by the Constitution to decide them ultimately and conclusively? Does he tell them to dismiss all their apprehensions of any collision between the States, or any possible resort to force on either side, since Virginia contended for no more than the right to appeal to public opinion, to induce a repeal of the obnoxious laws; and if she failed in that appeal, would cheerfully submit to the will of the majority; and abide by the decisions of the Federal court? No! nothing like it. On the contrary, he denies explicitly the exclusive jurisdiction of the Federal courts;' by which he tells us, the decision of the judiciary would be raised above the authority of the sovereign parties to the Constitution.' He asserts, 'that the States, as sovereign parties to the compact, must ultimately decide whether the Constitution has been violated; and, that in the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise by the Federal Government, of powers not granted by it, the States must have a right to interpose for the purpose of arresting the progress of the evil of usurpation, and of maintaining WITHIN THEIR RESPECTIVE LIMITS the authorities, rights and liberties appertaining to them.' And that, if in such a case they could not interpose, even so far as to arrest the progress of the evil, and thereby to PRESERVE THE CONSTITUTION ITSELF, there would be an end to all relief from usurped powers," &c. Mr. Madison then goes into an elaborate argument to prove that this right claimed for the State of Virginia, results of necessity from the Constitution, being a compact between sovereign States," who could have no common umpire, and who must, therefore, 'judge for themselves whether the compact had been preserved or violated.' The only answer which he attempts to give to the confusion, civil discord and force, predicted by the protesting States, as resulting from the Doctrines of Virginia, is, that the case was analogous to that of a treaty between sovereign nations, where, though the right of each party to judge for itself was universally admitted such consequences did not follow, and therefore ought not to be anticipated VOL. VI. NO. 12.

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in the case of an intimate constitutional union like that of the United States, where it was evident that the interposition of the parties in their sovereign capacity, could be called for by occasions only, deeply and essentially affecting the vital principles of our political system.

"From these extracts it will, we think, be seen, that Mr. Madison, so far from removing the apprehensions of the protesting States, by disclaiming the doctrines attributed to Virginia, reasserts and insists upon those doctrines in the strongest terms. And though it was not proposed at that time to do more than appeal to the other States for expressions of opinion, similar to those of Virginia, in relation to the Alien and Sedition Laws; yet it was deemed indispensable to accompany that appeal by the distinct and positive assertion of the right of the State to interpose for arresting the progress of the evil,' should all other measures fail in affecting a repeal of the obnoxious laws. That Kentucky understood the Virginia Resolutions in this sense is unquestionable. In responding to Virginia, she explicitly asserts the right of a State to judge not only of infractions of the Constitution, but of the mode and manner of redress' and still more explicitly declares, in the Resolution, of '98, ‘that the several States which formed the Constitution, being sovereign and independent, have the unquestionable right to judge of its infraction, and that a NULL FICATION by those sovereignties of all unauthorized acts done under colour of that instrument is the rightful remedy' On the whole, nothing, it appears to us, can be clearer, than that the Virginia resolutions were regarded in '98, as asserting some thing more than the right of a State to express an opinion, or to endeavour by reason aud argument to induce a repeal of obnoxious laws."

It falls not within the design of this article to shew the practicability of a State's rendering a law of Congress inoperative within its limits, and yet to remain in peace with the other members of the Union. But we do feel it to be our duty to say a little as to some of the consequences which so many persons imagine would necessarily result from such an act. Mr. Madison pronounces, that "it would be attended with delays, with inconveniences, and with expences amounting to a prohibition of the expedient; not to mention its tendency to impair the salutary veneration for a system, requiring such frequent interpositions." Mr. Senator Livingston also thinks, that “whenever the intervention of the State is necessary to arrest the execution of the legislative powers of the government, in cases which the States may deem illegal, the government is gone.' "Our people are warned that such an example in our State, if permitted, would lead to another and another, and the Constitution would at last become "a rope of sand,” and “heads of contention to a disputacious people." If Chancellor Harper, in his eloquent speech at the Columbia meeting, is not more correct when he expresses his belief, "that if every State in the Union had the power to appoint a tribune, having an absolute veto on the acts