Thirdly, to avoid such laws, amendments to the constitution might be obtained by the action of the states under its 5th article, and the question at issue thus finally settled.

No other remedy than these three were recognized by the Virginia proceedings, except it be the right of revolution, admitted by all, and which could only be justified by such a flagrant violation of the constitution as would produce insufferable wrong.

Such a compact is the constitution; such the sovereignty of the Federal Government; such the sovereignty of the states; and such the doctrine of state rights, as proclaimed by Jefferson and Madison in the Virginia resolutions and report. In them is to be found no ground, or apology whatever, for what is called the right of nullification or secession.

In 1835-6, Mr. Madison wrote as follows: "Although the legislature of Virginia declared, at a late session, almost unanimously, that South Carolina was not supported in her doctrine of nullification by the resolutions of 1798; it appears that those resolutions are still appealed to as expressly or constructively favoring the doctrine." After quoting those resolutions, he asks: "Is there anything from which a single state can infer a right to arrest or annul an act of the general government which it may deem unconstitutional? So far from it, the obvious and proper inference precludes such a right on the part of a single state; the plural number being used in every application of the term." Against the right to secede, he writes in a letter to Mr. Trist, of Dec. 1832: "If one state can at will, withdraw from the others, the others can at will withdraw from her, and turn her nolentem volentem out of the Union. * * The essential difference between a free government and governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it; neither of them, therefore, can have a greater right to break off from the bargain than the other, or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of 1798, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion, lies in confounding a single party with the parties to the constitutional compact of the United States. The latter having made the compact may do what they will with it. The former, as only one of the parties, owes fidelity to it till released by consent, or absolved by an

intolerable abuse of the power created. In the Virginia resolutions and report, the plural number, states, is in every instance used where reference is made to the authority which presided over the government. As I am now known to have drawn those documents, I may say, as I do, with a distinct recollection, that the distinction was intentional. It was, in fact, required by the course of reasoning, employed on the occasion. The Kentucky resolutions, being less guarded, have been more easily perverted. The pretext for the liberty taken with those of Virginia, is the word respective, prefixed to the rights, etc., to be secured within the states. Could the abuse of the expression have been foreseen, or suspected, the form of it would doubtless have been varied. But what can be more consistent with common sense, than that all having the same rights, etc., should unite in contending for the security of them to each."

In the original draft of the 7th Virginia resolution, where the alien and sedition laws are declared "unconstitutional," following that term were the words " null and void," which, although really used generally as synonymous with unconstitutional, were objected to for fear they might be misconstrued into the semblance of a nullifying act, and were therefore unanimously stricken out by the House.

Another significant fact, showing that loyalty to the constitution, and not rebellion against it in any form of nullification, was the grand object of Virginia in her resolutions of 1798, is, that about that time a man by the name of Callender was condemned and imprisoned in Virginia, under the alien and sedition laws, without the least opposition on the part of the State. Indeed, it was said by one of her most distinguished statesmen of that day, the occasion was viewed by Virginia as one for illustrating her devotion to public order, and her acquiescence in laws which she deemed unconstitutional, while those laws were not repealed or pronounced void by the judiciary. These statements are confirmed by the letters from Monroe to Madison, of the 15th of May and the 4th of June, 1800.

Although the term "nullification" is only to be found in the Kentucky resolutions of 1799, (and it is believed not to have been used then in its modern obnoxious sense) it is certain Mr. Madison had nothing to do with them. Nor was Mr. Jefferson their author. The resolutions of Kentucky, of which he was the author, were those of 1798, which were drawn by him, and are usually referred

to with the Virginia proceedings. They do not contain the term "nullification," or any word equivalent to it. Mr. Madison, in a letter to Mr. Townsend, dated September, 1831, says: "You ask whether Mr. Jefferson was really the author of the Kentucky resolutions of 1799. The fact that he was not, is as conclusive as it is obvious, from his letter to Col. Wilson Cary Nicolas, of Sept. 5, 1799, which expressly declines, for reasons stated, preparing anything for the legislature of that year. * * * What might or would have been the meaning attached to the term "nullify" by Mr. Jefferson, is to be gathered from his language in the resolutions of 1798, and elsewhere, as in his letter to Mr. Giles, Dec. 25, 1825. viz: to extreme cases, as alone justifying a resort to any forcible relief. That he ever asserted a right in a single state to arrest the execution of an act of Congress, the arrest to be valid and permanent unless reversed by three-fourths of the states, [the South Carolina doctrine] is countenanced by nothing known to have been said or done by him. In his letter to Major Cartwright, he refers to a con⚫vention as a peaceable remedy for conflicting claims of power in our compound government; but whether he alluded to a convention as prescribed by the constitution, or brought about by any other mode, his respect for the will of majorities, as the vital principle of Republican Government, makes it certain that he could not have meant a convention in which a minority of seven states was to prevail over seventeen, either in amending or expounding the constitution."

In their views of all the fundamental principles which are embodied in the American Constitution, and the government over which it was established, none of the great statesmen of the past understood each other better, or were in more perfect accord, than Jefferson and Madison. No more signal proof can be given of this harmony between them, and of their sensitiveness to any alleged difference on these great subjects, than is shown by the letter of the latter in 1833, to " Mutius," in which he says: "Mutius, in his anxiety to discredit the opinions of James Madison, endeavors to discredit the Federalist,' in which he bore a part, by observing that the work was no favorite 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

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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 those who accepted the Constitution of the United States, on questions as to its general meaning.' He speaks of the Federalist,'' as being, in his opinion, the best commentary on the principles of government that ever was written.'

Surely no one can question the authority of Mr. Madison, in his judgment of Mr. Jefferson, and of his opinions, on the political issues of a period in which they were so intimately associated and identified with each other.

Therefore we consider it conclusively settled by the foregoing discussion and authorities, that the right, claimed under the constition, for a state to nullify an act of the Union, or to secede from it, is wholly adverse to and condemned by the doctrine of state rights, as proclaimed in the Virginia Resolutions and Report of 1798-99.

But we wish in this discussion further to show that by this doctrine of state rights the rightful authority of the Federal Judiciary is fully maintained. Unless this is recognized and enforced our government is a failure.

To understand its jurisdiction correctly, we must be careful in the first instance to discriminate between questions arising under the constitution which are political, and those which are judicial. The decisions of the latter belong exclusively to the judiciary, and when rendered, until reversed by itself, or changed by constitutional amendment, are the supreme law of the land--as supreme as the constitution itself. The decisions of the former belong exclusively to other functionaries of the government, who, respectively, have the right to decide them independently of any dicta of the courts. "The judicial power shall extend to all cases in law and equity arising under the constitution." To be within the authority of the Federal Judiciary under this clause, the case must be one in law or equity arising under the constitution. The provision does not say, to all cases arising under the constitution, the laws of the United States and treaties made-but "to all cases in law and equity arising," etc.

Congress, in 1798, declared a treaty between the United States and France annulled, on account of violations charged against the latter. Previous to this act, notwithstanding these violations of the treaty by France, the Federal Court, in any case coming before it under

that treaty, was bound to recognize it as obligatory, and to enforce the rights of the parties under its provisions. Whether, or not, those violations annulled the treaty, was a political, not a judicial question. It was not one of law or equity, although undoubtedly one arising under the constitution and treaties of the United States. Chief Justice MARSHALL said: "By extending the judicial power to all cases in law and equity, the constitution had never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into the court who can be reached by its process and bound by its powers; whose rights admit of ultimate decision by a tribunal to which they are bound to submit. A case in law or equity may arise under a treaty, when rights of individuals acquired by a treaty, are to be asserted or defended in court. But the judicial power cannot extend to political compacts.”

Let us consider briefly, but more especially, the nature of the questions alluded to which are not for the judiciary, but exclusively for other departments of the government to decide.

The constitution provides that "Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or office thereof."

Without this provision, the power it expresses would have existed in Congress by implication, but, fearing the system of implied powers, if left without qualification to be inferred, might be used to a dangerous and unwarranted extent, it was thought wise to qualify them by the strong and exclusive words, "necessary and proper." Although these words were used undoubtedly to secure a strict construction of the constitution, their application was intended to be practical and to require that, in executing the specified and express powers, Congress should use such means only as are proper and appropriate, and not to be extended to such, which, while they might accomplish the end indirectly, would unduly, and for other purposes, enlarge the power and patronage of the government. All questions arising as to which of the various means, proper and appropriate, should be used for executing the powers referred to in the above clause, are political questions, or matters