As the charges which have been made against Mr Madison are founded in the main on "Yates 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 shew 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’ notes of what passed in the Convention, it is on that authority alone that Mr Madison 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 Mr Madison 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 Mr Madison may 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 cases where a strong presumptive evidence is opposed to it.

Again, Mr Madison is made to say that "the States were only great political corporations having the power of making bye 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 practise 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 Mr Madison is an "opinion that the States ought to be placed under the controul 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 further difference that no tax whatever could 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 the 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, whilst 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 safely be entrusted to the new government as was allowed to great Britain in the old one.

An early idea taken up by Mr Madison with a view to the security of a government for the Union and the 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 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 shew, produced an equal division of the votes. In every proceeding of the Convention where the question of paramountship in the laws of the Union could be involved, the necessity of it appears to have been taken for granted. The mode of controuling 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 controul of the Federal Judiciary over the State Laws as more objectionable than a legislative negative on them. See New views of the Constitution p. 18. E. contra. See Mr Jefferson—vol 2. p. 163.) "Would not an appeal from the State Judicature to a Federal Court in all cases where the act of Confederation controuled the question, be as effectual a remedy and exactly commensurate to the defect" &c. &c.

It has been asked if the states possessed no Sovereignty, how could Mr Madison in the Nos. of the Federalist demonstrate that the States retained a residuary sovereignty," and a solution of the problem is called for. The interrogators will themselves solve it, by answering the question, which is most to be believed, that Mr Madison 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 "Mr Madison expressed as much attachment to the rights of the States as to the trial by jury." See debates under date June 30.

By associating Mr Madison with Mr Hamilton who entertained peculiar opinions, a late assailant of Mr M. would fain infer that he concurred with those opinions. The inference would have been as good, if he had made Mr Hamilton concur in all the opinions of Mr Madison. 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 this writer 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 difference of opinion between the two individuals.

The same writer, in his anxiety to discredit the opinions of Mr Madison, endeavors to discredit "the Federalist" in which he bore a part by observing that the work was no favorite with Mr Jefferson. He is possibly ignorant of, and will be best answered by, the fact that Mr Jefferson proposed, that with the Declaration of Independence, The Valedictory of gen Washington, and the Resolutions and Report of 98-9 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 also Vol. 2. page 382.

The assailants of Mr Madison find another charge against him of inconsistency between the Report of 99 and his letter to Mr Everett in 1830; a charge which they endeavour to support by a comparison of the following extracts from the two documents, but which is deprived of all its force or rather is turned against them 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. (For the extracts see Richmond Whig Septr 17. 1830.)

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 of 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 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 combatted".

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 tribunals, to be of a limited scope is shewn by the paragraph omitted by the writer here alluded to. "Should the provisions of the Constitution 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 to 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 3/4 of the States being made equivelant, with two specified exceptions, to the entire authority 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 shewn by the paragraph not omitted by the writer—"and in the event of a failure of every Constitutional resort, and an accumulation of usurpations and abuses rendering passive obedience and non resistance a greater evil than resistance 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 this writer, 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 99 and the letter to Mr Everett. They both recognize and adhere to the distinction between a last resort in behalf of constitutional rights, within the forms of the Constitution, and the ulterior resort 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 expounding 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 shewn that Mr Madison ever admitted that a single State had a Constitutional right to annul, resist or controul 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 disgust the wise.

It has been a charge against Mr Madison 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 Constitution presents a government organized into the regular departments, 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 by no one of the Republican party more expressly than by 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 Mr Madison vol 2. 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 Destut 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 2. 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 a 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 Mr Madison vol 2. p. 164, 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 and acknowledged 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 stedfast to their creed with innovation, inconsistency heresy and apostacy! 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 Mr Madison, 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 no where appears that he has ever changed his opinions with regard to them.

If he 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. *

(* See appendix to Mr Cabell’s printed speech in pamphlet form)

It may not be improper to remark that whilst he maintains the constitutionality of a protective tariff, he is a friend to the theory of free trade, and in favor 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. +

(+ See his letters to Mr. Cabell.)

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 controuling 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 the existence of the Union.

The recent assailants of Mr Madison, are, for the most part, it is presumed, young men. When they shall mingle with political zeal a due portion of the candour which, it is hoped, belongs to their nature, it may be safely be left to their own judgments 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 Mr Madison, 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 cooler tempers and maturer reflection, they will be better judges also of their own consistency in their eager efforts to discredit that of Mr Madison, whilst their 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.

As the charges of Mutius are founded in the main, on "Yates’ 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 shew, 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’ 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 cases 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 controul 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 further difference that no tax whatever could 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 the 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, whilst 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 safely be entrusted to the new Government as was allowed to Great Britain by the old one.

An early idea taken up by J M with a view to the security of the Government for the Union, and the 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 authorised 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 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 shew, produced an equal division of the votes. In every proceeding of the Convention where the question of paramountship in the laws of the Union could be involved, the necessity of it appears to have been taken for granted. The mode of controuling 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 controul of the Federal judiciary over the State laws as more objectionable than a legislative negative on them. See New Views of the Constn. p. 18. E. contra See Mr. Jefferson vol. 2. pa. 163. "Would not an appeal from the State judicature to a Federal Court in all cases where the act of Confederation controuled the question be as effectual a remedy, and exactly commensurate to the defect, &ca. &ca.

Mutius asks "If the States possessed no Sovereignty how could J M demonstrate that the States retained a residuary sovereignty," and calls 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." See Debates under date June 30.

By associating J M with Mr. Hamilton who entertained peculiar opinions M___s would fain infer that J M concurred with those opinions. The inference would have been as good, if he had 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 favorite with Mr. Jefferson." Mutius is possibly 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 98-9, "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 also Vol. second. page 382.

Mutius finds another charge against J M of inconsistency between the Report of 99, and his letter to Mr. Everett in 1830; a charge which he endeavours to support, by a comparison of the following extracts from the two 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.

(for the extracts see Richmond Whig September 17, 1830)

The positions in the Report are that altho’ 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 & 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 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 combatted."

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 shewn by the paragraph omitted by Mutius. "Should the provisions of the Constitution 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 to 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 3/ 4 of the States being made equivelant, with two specified exceptions, to the entire authority 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 shewn 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 resistance a greater evil than resistance 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 99, and the letter to Mr. Everett. They both recognize 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 expounding 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 shewn that J M ever admitted that a single State had a Constitutional right to annul, resist or controul 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 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 Legislative, Executive & 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 by no one of the Republican party more expressly than by 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. 2, page 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 Destut 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. 2, page 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 a 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. 2, page 164 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 on their united character, has a strange appearance when, in that character only, they are known and acknowledged by other nations; in that only can make war and 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 the evidence at hand what ought to be the designation of them 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 stedfast to their creed, with innovation, inconsistency, heresy and apostacy! 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 thro’ 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 no where appears that he has ever changed his opinions with regard to them.

If he 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. *

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

It may not be improper to remark that whilst he maintains the constitutionality of a protective tariff, he is a friend to the theory of free trade, and in favor 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. +

+ See his letters to Mr. Cabell.

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 controuling 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 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, whilst 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.