October, 1833.

As the charges of "Mutius" are founded, in the main, on "Yates’s Debates in the Federal Convention of 1787," it may be remarked, without impeaching the integrity of the reporter, that he was the representative in that body of the party in New York which was warmly opposed to the Convention, and to any change in the principles of the "Articles of Confederation;" that he was doubtless himself, at the time, under all the political bias which an honest mind could feel; that he left the Convention, as the journals show, before the middle of the session, and before the opinions or views of the members might have been developed into their precise and practical application; that the notes he took are, on the face of them, remarkably crude and desultory, having often the appearance of scraps and expressions, as the ear hastily caught them, with a liability to omit the sequel of an observation, or an argument which might qualify or explain it.

With respect to inferences from votes in the journal of the Convention, it may be remarked, that, being unaccompanied by the reasons for them, they may often have a meaning quite uncertain, and sometimes contrary to the apparent one. A proposition may be voted for with a view to an expected qualification of it, or voted against as wrong in time or place, or as blended with other matter of objectionable import.

Although such was the imperfection of Mr. Yates’s notes of what passed in the Convention, it is on that authority alone that J. M. is charged with having said "that the States never possessed the essential rights of sovereignty; that these were always vested in Congress."

It must not be overlooked, that this language is applied to the condition of the States, and to that of Congress, under "the Articles of Confederation." Now can it be believed that Mr. Yates did not misunderstand J. M. in making him say "that the States had then never possessed the essential rights of sovereignty," and that "these had always been vested in the Congress then existing?" The charge is incredible when it is recollected that the second of the Articles of Confederation emphatically declares "that each State retains its sovereignty, freedom, and independence, and every power, &c., which is not expressly delegated to the United States in Congress assembled."

It is quite possible that J. M. might have remarked that certain powers, attributes of sovereignty, had been vested in Congress; for that was true as to the powers of war, peace, treaties, &c. But that he should have held the language ascribed to him in the notes of Mr. Yates is so far from being credible, that it suggests a distrust of their correctness in other eases where a strong presumptive evidence is opposed to it.

Again, J. M. is made to say "that the States were only great political corporations, having the power of making by-laws; and these are effectual only if they were not contradictory to the general confederation."

Without admitting the correctness of this statement in the sense it seems meant to convey, it may be observed that, according to the theory of the old Confederation, the laws of the States contradictory thereto would be ineffectual. That they were not so in practice is certain; and this practical inefficacy is well known to have been the primary inducement to the exchange of the old for the new system of government for the United States.

Another charge against J. M. is an "opinion that the States ought to be placed under the control of the General Government, at least as much as they formerly were under the King and Parliament of Great Britain."

The British power over the Colonies, as admitted by them, consisted mainly of—1. The royal prerogatives of war and peace, treaties, coinage, &c., with a veto on the colonial laws as a guard against laws interfering with the general law and with each other. 2. The parliamentary power of regulating commerce, as necessary to be lodged somewhere, and more conveniently there than elsewhere. These powers are actually vested in the Federal Government, with the difference that for the veto power is substituted the general provision that the Constitution and laws of the United States shall be paramount to the constitutions and laws of the States; and the farther difference, that no tax whatever should be levied by the British Parliament, even as a regulation of commerce; whereas, an indefinite power of taxation is allowed to Congress, with the exception of a tax on exports, a tax the least likely to be resorted to. When it is considered that the power of taxation is the most commanding of powers, the one which Great Britain contended for, and the Colonies resisted by a war of seven years; and when it is considered that the British government was in every branch irresponsible to the American people, while every branch of the Federal Government is responsible to the States and the people as their constituents, it might well occur, on a general view of the subject, that, in an effectual reform of the federal system, as much power might be safely intrusted to the new Government as was allowed to Great Britain in the old one.

An early idea taken up by J. M., with a view to the security of a government, for the union and harmony of the State governments, without allowing to the former an unlimited and consolidated power, appears to have been a negative on the State laws, to be vested in the senatorial branch of the Government, but under what modifications does not appear. This, again, is made a special charge against him. That he became sensible of the obstacles to such an arrangement, presented in the extent of the country, the number of the States, and the multiplicity of their laws, cannot be questioned. But is it wonderful that, among the early thoughts on a subject so complicated and full of difficulty, one should have been turned to a provision in the compound, and, on this point, analogous system of which this country had made a part, substituting for the distant, the independent, and irresponsible authority of a king, which had rendered the provision justly odious, an elective and responsible authority within ourselves?

It must be kept in mind that the radical defect of the old Confederation lay in the power of the States to comply with, to disregard, or to counteract the authorized requisitions and regulations of Congress; that a radical cure for this fatal defect was the essential object for which the reform was instituted; that all the friends of the reform looked for such a cure; that there could, therefore, be no question but as to the mode of effecting it. The Deputies of Virginia to the Convention, consisting of George Washington, Governor Randolph, &c., appear to have proposed a power in Congress to repeal the unconstitutional and interfering laws of the States. The proposed negative on them, as the Journals show, produced an equal division of the votes. In every proceeding of the Convention where the question of paramountship in the Union could be involved, the necessity of it appears to have been taken for granted. The mode of controlling the legislation of the States, which was finally preferred, has been already noticed. Whether it be the best mode experience is to decide. But the necessity of some adequate mode of preventing the States, in their individual characters, from defeating the constitutional authority of the States in their united character, and from collisions among themselves, had been decided by a past experience. [It may be thought not unworthy of notice that Col. Taylor regarded the control of the Federal Judiciary over the State laws as more objectionable than a legislative negative on them. See New Views, &c., p. 18; contra, see Mr. Jefferson, vol. ii, p. 163.]

Mutius asks, "If the States possessed no sovereignty, how could J. M. demonstrate that the States retained a residuary sovereignty, and call for a solution of the problem?" He will himself solve it by answering the question, which is most to be believed, that J. M. should have been guilty of such an absurdity, or that Mr. Yates should have erred in ascribing it to him ?

Mr. Yates himself says that J. M. expressed as much attachment to the rights of the States as to the trial by jury.

By associating J. M. with Mr. Hamilton, who entertained peculiar opinions, Mutius would fain infer that J. M. concurred with those opinions. The inference would have been as good if he lind made Mr. Hamilton concur in all the opinions of J. M. That they agreed, to a certain extent, as the body of the Convention manifestly did, in the expediency of an energetic Government adequate to the exigencies of the Union, is true. But when Mutius adds, "that Mr. Hamilton and Mr. Madison advocated a system not only independent of the States, but which would have reduced them to the meanest municipalities," he failed to consult the recorded differences of opinion between the two individuals.

Mutius, in his anxiety to discredit the opinions of J. M., endeavours to discredit the "Federalist," in which he bore a part, by observing, "that the work was no favourite with Mr. Jefferson." Mutius is probably ignorant of, and will be best answered by, the fact that Mr. Jefferson proposed, that, with the Declaration of Independence, the Valedictory of General Washington, and the Resolutions and Report of 1798-99, the Federalist should be, as it now is, a text-book in the University. He describes it as "being an authority to which appeal is habitually made by all, and rarely declined or denied by any, as evidence of the general opinion of those who framed and of those who accepted the Constitution of the United States, on questions as to its general meaning." See in vol. ii, p. 382. [He* speaks of the Federalist "as being, in his opinion, the best commentary on the principles of Government that ever was written. In some parts, it is discoverable that the author meant only to say what may be best said in defence of opinions in which he did not concur. But, in general, it establishes firmly the plan of Government. I confess it has rectified me on several points. As to the Bill of Rights, however, I think it should still be added." This was materially affected by the amendments to the Constitution.]

Mutius finds another charge against J. M. of inconsistency between the report of 1799 and his letter to Mr. Everett in 1830; a charge which he endeavours to support by a comparison of the following extracts from the documents, but which is deprived of all its force, or rather is turned against him by the plain distinction between the "last resort" within the forms of the Constitution and the ulterior resort to the authority which is paramount to the Constitution itself.*

"However true it may be that the Judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the Government, not in relation to the rights of the parties to the constitutional compact, for which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

"It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that when resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The States being the parties to the constitutional compact, and in their sovereign capacity, it follows, of necessity, that there can be no tribunal above their authority to decide in the last resort whether the compact made by them be violated; and, consequently, that as the parties to it they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

"If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of tho rights specified or recognised under all the State constitutions, as well as a plain denial of the fundamental principle on which our independence was declared.

"The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind, and at no time, perhaps, more necessary than at the present."

"It is true that, in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the General Government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution, and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact, and that it ought to be established under the general rather than under the local governments; or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated." Having quoted the above from the Federalist,* Mr. Madison proceeded and remarked, "that the Constitution is a compact; that its text is to be expounded according to the provisions for expounding it, making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as it may accrue, it must grow out of the abuses of the compact, releasing the sufferers from their fealty to it."

"In the event of a failure of every constitutional resort, and an accumulation of usurpations and abuses rendering passive obedience and non-resistence a greater evil than resistence and revolution, there can be but one resort, the last of all, an appeal from the cancelled obligations of the constitutional compact to original rights and the law of self-preservation. This is the ultima ratio under all governments."

The positions in the report are, that although the Judiciary department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, the resort is not the last in relation to the rights of the parties to the constitutional compact; that these, from whom the judicial as well as the other departments hold their delegated trust, are the rightful judges in the last resort, whether the compact has been pursued or violated. [This view of the subject appears, from the report itself, to have been specially called for by the extravagant claims in behalf of judicial decisions as precluding any interposition whatever on the part of the States.]

In the letter to Mr. Everett, the positions are, as cited from the ’’Federalist," that, "in controversies relating to the boundaries between the two jurisdictions," [the Federal and the State,] "the tribunal which is ultimately to decide is to be established under the General Government; that the decision is to be impartially made, according to the rules of the Constitution; that some such tribunal was essential, to prevent an appeal to the sword and a dissolution of the Union; and that it ought to be established under the general rather than under the local governments; or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated."

It is sufficiently clear that the ultimate decision of the tribunal here referred to is confined to cases within the judicial scope of the Government; that it had reference to interfering decisions of a local or State authority; and that it neither denies nor excludes a resort to the authority of the parties to the Constitution, an authority above that of the Constitution itself.

That the letter to Mr. Everett understood the term ultimately, as applied to the decisions of the Federal tribunal, to be of a limited scope, is shown by the paragraph omitted by Mutius. "Should the provisions of the Constitution as here reviewed" [including the judiciary] "be found not to secure the governments and rights of the States against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution lies in an amendment of the Constitution according to a process applicable by the States." [Here is a special resort provided by the Constitution, which is ulterior to the judicial authority; the authority of three-fourths of the States being made equivalent, with two specified exceptions, to the entire authorities of the parties to the Constitution.]

And that the ultimate decision of the judicial authority could not be meant, in the letter to Mr. Everett, to be the last of all, is shown by the paragraph not omitted by Mutius. "And in the event of a failure of every constitutional resort, and an accumulation of usurpations and abuses rendering passive obedience and non-resistence a greater evil than resistence and revolution, there can remain but one resort, the last of all, an appeal from the cancelled obligations of the constitutional compact to original rights and the law of self-preservation. This is the ultima ratio under all governments."

Instead of the paragraph omitted by Mutius, he has inserted from the letter a remark, "that the Constitution is a compact; that its text is to be expounded according to the provisions for expounding it, making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as it may accrue, it must grow out of the abuses of the compact releasing the sufferers from their fealty to it." What is this but saying that the compact is binding in all its parts on those who made it? that the acts of the authorities constituted by it must be observed by the parties till the compact be changed or abolished? Is not this true of all compacts, and the dictate of common sense as well as universal practice?

Where, now, is the inconsistency between the report of 1799 and the letter to Mr. Everett? They both recognise and adhere to the distinction between a last resort in behalf of constitutional rights, within the forms of the Constitution, and the ulterior resorts to the authority paramount to the Constitution.

These different resorts, instead of being incompatible, necessarily result from the principles of all free Governments, whether of a Federal or other character. Is not the expound-ing authority, wherever lodged by the constitution of Virginia, the last resort within the purview of the Constitution against violations of it? and are not the people who made the Constitution a last resort against violations of it, even when committed by the last resort within the constitutional provisions? The people as composing a State, and the States as composing the Union, may, in fact, interpose either as constituents of their respective governments, according to the forms of their respective constitutions, or as the creators of their constitutions, and as paramount to them as well as to the governments.

It cannot, as is believed, be shown that J. M. ever admitted that a single State had a constitutional right to annul, resist, or control a law of the United States, or that he ever denied either the right of the States as parties to the Constitution [not a single State or party] to interpose against usurped power; or the right of a single State, as a natural right, to shake off a yoke too oppressive to be borne. These distinctions are clear, and, if kept in view, would dispel the verbal and sophistical confusion so apt to bewilder the weak and to disgust the wise.

It has been a charge against J. M. that, in his letter to Mr. Everett, he represents the people of the several States as constituting themselves one people for certain purposes.

That the authority of the people of the States, which, exercised as it was in their highest sovereign capacity in each, could have made them, if they had so pleased, one people for all purposes, was sufficient to make them one people for certain purposes, cannot be denied; and that they did make themselves one people for certain purposes, results from the nature of the Constitution formed by them, which, like the State constitutions-presents a Government organized into the regular departments of legislative, executive, and judiciary, and, like the State governments, operating immediately and individually on the people, by the same coercive forms and means.

The oneness, the sovereignty, and the nationality of the people of the United States, within the prescribed limits, has hitherto been the language of all parties; and of no one of the Republican party more expressly than of Mr. Jefferson, whose opinions have been so often misunderstood and misapplied. Take some of the extracts which his printed writings furnish. In a letter to J. M., vol. ii, p. 442, he says: "This instrument [the Federal Constitution] forms us into one State, as to certain objects, and gives us a legislative and executive body for those objects." He elsewhere uses the expression, "to make us one as to others, but several as to ourselves." In his letter to Destutt Tracy, he applies the term amalgamated to the union of the States; and in one to Mr. Hopkinson, the term consolidated to the Government. These terms are doubtless to be taken with the proper qualifications; but surely they would not have been applied to a constitution purely and exclusively federal in its character.

In a letter to Mr. Wythe, vol. ii, p. 230, he says: "My own general idea was, that the States should severally preserve their sovereignty, and that the exercise of the federal sovereignty should be divided among the three several bodies, legislative, executive, and judiciary, as the State sovereignties are; and that some peaceable means should be contrived for the federal head to force compliance on the part of the States." [Having reference, it may be presumed, to an obstruction of their trade, repeatedly suggested in his correspondence with his friends as applicable even to the "Articles of Confederation," or to the operation of the laws on the people, as in the Constitution of the United States, which was then before him.]

In a letter to J. M., vol. ii., p. 64, alluding to the expected Convention of 1787, his language is, "to make us one nation as to foreign concerns, and keep us distinct as to domestic ones; gives the outline of the proper division of power between the general and particular governments."

To question the nationality of the States in their united character has a strange appearance, when in that character only they are known to and acknowleged by other nations; in that only can make war, peace, and treaties; and in that only can entertain the diplomatic and all the other international relations which appertain to the national character.

With all this evidence at hand, what ought to be the designation of those who, renouncing the views and language which have been applied by the Republican party to the Constitution of the United States, are now charging, in the name of republicanism, those who remain steadfast to their creed, with innovation, inconsistency, heresy, and apostasy? Such an outrage on truth, on justice, and even on common decorum, must be of short endurance. The illusion under which it is propagated is the misapplication to a peculiar and complex modification of political power, views of it applicable only to ordinary and simple forms of Government. Happily, appeals can be always triumphantly made from such perversions to the nature and text of the Constitution and the facts inseparable from it.

Returning to the special charge of inconsistency against J. M., it is not more than justice to him to say, that it will be difficult to find among our public men, who have passed through the same changes of circumstances and vicissitudes of parties, one who has been more uniform in his opinions on the great constitutional questions which have agitated the country. To the constitutionality of the bank, originally opposed by him, he acceded; but, as appears by his letter to Mr. Ingersoll. on the ground of the authoritative and multiplied sanctions given to it, amounting, he conceived, to an evidence of the judgment and will of the nation; and on the ground of a consistency of this change of opinion with his unchanged opinion, that such a sanction ought to overrule the abstract and private opinions of individuals.

With the exception of the case of the bank thus explained, he has preserved a uniform consistency on the great constitutional questions, the caption, "We, the people;" the phrase "common defence and general welfare;" "roads and canals;" the "alien and sedition laws." It might not improperly be added, that he appears to have originated and perseveringly supported the amendments to the Constitution adopted at the first session of the first Congress, as guards against constructive enlargements of the Federal powers. And it nowhere appears that he has ever changed his opinions with regard to them.

If be advocates the constitutionality of a tariff for the encouragement of domestic manufactures, it must be admitted that it is in conformity with his course on that subject at, and ever since, the first Congress under the present Constitution of the United States; that in this opinion he has had the concurrence of Washington and all his successors, and especially of Mr. Jefferson. In the same opinion he has been supported by that of every Congress, from the first to the last.* It may not be improper to remark, that while be maintains the constitutionality of a protective tariff, he is a friend to the theory of free trade, and in favour of such exceptions only as are consistent with its principle, and as are dictated either by a regard to the public safety or by a fair calculation that a temporary sacrifice of cheapness will be followed by a greater cheapness, permanent as well as independent.*

If he considers decisions of the Supreme Court of the United States, in cases within its constitutional jurisdiction, as paramount to State decisions, it is not the effect of change in his opinion; for the same appears in his original exposition and vindication of the Constitution of the United States. In his letter to Mr. Everett he maintains (does he not prove?) that the controlling authority of the Federal Judiciary is the only defence against nullifying acts of a State through its judiciary organ. It will be as difficult for those who deny the nullifying power Of a State to deny this inference, as for those who assert the doctrine to reconcile it with the text and principles of the Constitution or with the existence of the Union.

Mutius is probably a young man. He certainly possesses talents worthy of literary cultivation. When he shall mingle with political zeal a due portion of the candour which it is hoped belongs to his nature, it may safely be left to his own judgment to decide whether the scanty and hasty notes of Mr. Yates, or inferences from naked votes in the Journal of the Convention, ought to outweigh, in a charge of inconsistency against J. M., the authority of his earliest writings on the subject of the Constitution, his language in the Convention of Virginia when the Constitution was under discussion, and the whole course of his opinions, official and unofficial, down to the latest date.

With the advantage of a cooler temper and maturer reflection, he will be a better judge also of his own consistency, in his eager efforts to discredit that of J. M., while his eulogies and confidence are lavished on others who have passed abruptly from one extreme to its opposite, on subjects vital to the Constitution, the Union, and the happiness of our country.

^* This in brackets omitted in the letter.

^* For the extracts see the Richmond Whig, September 17, 1833.

^* Ante, p. 95

^* Number 39.

^* See appendix to Mr. Cabell’s printed speech in pamphlet form.

^* See his letters to Mr. Cabell.