for power, between them, can the Supreme Court assert its exclusive right to determine the controversy. It is not denied but that the Judiciary of this country is in the daily habit of far outgoing that of any other. It often puts its veto upon the acts of the immediate representatives of the people. It, in fact assumes legislative powers, by repealing laws which the Legislature have enacted. This has been acquiesced in, and may be right, but the present claim on the part of the Judiciary, is, to give unlimited powers to a government only clothed, by the people, with those which are limited. It claims the right, in effect, to change the government: to convert a federal into a consolidated government. The Supreme Court is also pleased to say, that this important right and duty has been devolved upon it by the Constitution.

If there be a clause to that effect in the Constitution, I wish the Supreme Court had placed their finger upon it. I should be glad to see it set out haec verba. *** When a right is claimed by one of the contracting parties to pass finally upon the rights or powers of another, we ought at least to expect to see an express provision for it. That necessity is increased, when the right is claimed for a deputy or department of such contracting party. The Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate. The general government cannot decide this controversy, and much less can one of its departments. They cannot do it, unless we tread under foot the principle which forbids a party to decide his own cause.

While we are told by Vattell, in a passage formerly quoted, it is often proper for the head and members of a confederacy to establish an umpire or arbitrator of their deputies, he also tells us that that head is competent to decide the troubles which exist between the several members. The head has not the jurisdiction in the first case, because it is interested; and has it in the second because it is not. The head of the government is entirely disinterested, in relation to the disputes of its members. Our Constitution has gone by this principle,

in both its aspects. It has given to the Supreme Court, in express terms, a right to decide controversies between two or more States: it has not given to it a jurisdiction over its own controversies, with a State or States. It could not give it, without violating a great principle; and we certainly cannot supply by implication, that which the convention dared not to express. In deriving such a power the least that should satisfy us would be an express provision in the Constitution. If it be said that this power is carried, under the general words of extending the jurisdiction of the Supreme Court to "all cases arising under the Constitution;" the answer is, that these words may be otherwise abundantly satisfied: they do not oblige us to violate the great principle before mentioned. As to this case, the Constitution is a law sub graviori lege. That paramount law is the great principle I have just mentioned. A constitution giving by these words, a jurisdiction in the case before us, would equally subject the Emperor of Russia to the jurisdiction of the Supreme Court! There is another principle which is also conclusive. The rank of this controversy between the head and one of the members of the confederacy, may be said to be superior to those depending between two of the members: and the lawyers well know, that a specification beginning with a person of inferior grade, excludes those of a superior. If in the face of these great principles, this power was intended to be given would it not have been expressly provided for in the Constitution?

I have thus, Mr. Editor, stated to you SOME of the objections I have to the opinion of the Supreme Court. There are other points in that opinion, equally objectionable. I leave them to abler hands. The objections I have stated are of overruling influence if they be well founded. I have shown, or endeavored to show, that the Supreme Court has erroneously decided the actual question depending before it that it has gone far beyond that question, and in an extra-judicial manner, established an abstract doctrine: that they have established it in terms so loose and general, as to give Congress an unbounded authority, and enable them to shake off the lim

its imposed on them by the Constitution: I have also endeavored to show that the Supreme Court has, without authority, and in the teeth of great principles, created itself the exclusive judge in this controversy. I have shown that these measures may work an entire change in the Constitution, and destroy entirely the State authorities. In the prosecution of this plan, it has been deemed expedient to put the State legislatures hors du combat. They might serve, at least, to concentrate public opinion, and arrest, as they have heretofore done, the progress of federal usurpation. The people of this vast country when their State legislatures are put aside, will be so sparse and diluted, that they cannot make any effectual head against an invasion of their rights. The triumph over our liberties will be consequently easy and complete. Nothing can arrest this calamity, but a conviction of the danger being brought home to the minds of the people. That people, who, in this country have, heretofore, put down the enforcement of the sedition law, which, in the eyes of the judges, was entirely unexceptionable!: that people, who, in England, reversed the infamous judgment in the case of ship money, and the no less infamous doctrines of Mansfield, on the law of libels, can reverse the judgment now in question. To that authority I appeal. I invoke no revolutionary or insurrectionary measures. I only claim that the people should understand this question. The force of public opinion will calmly rectify this evil. I repeat, however, that I have no sanguine presages of success. Such is the torpor of the public mind, and such the temper of the present times, that we can count on nothing with certainty. It would require more than the pen of Junius, and all the patriotism of Hampden, to rouse our people from the fatal coma which has fallen upon them.

June 22, 1819.

HAMPDEN.

LIST OF PRINCIPAL AUTHORITIES.

The Roane MSS., kindly loaned by Mr. E. C. Harrison.

Files of the Richmond Enquirer.

Times of the Tylers.

Journals of the Va. House of Delegates.

Virginia Law Register.

John Quincy Adams' Diary.

Jefferson's and Madison's writings.

Virginia Law cases.

Writings of J. Randolph Tucker.

Wheaton's reports.

Call's reports.

Cranch's reports.

Leigh's reports.

Munford ibid.

Henry's Life of Patrick Henry.

Green Bag, Vol. V, 320, article by S. S. P. Patteson.

Making of the Nation, Walker.

Adams' and Schouler's Histories of the United States.

Hart's Formation of the Union.

Ford, Paul Leicester, Essays on the Constitution.

N. B. The author desires to express his hearty thanks to Judge T. R. B. Wright, Mr. E. C. Harrison, Mrs. James Roane, Miss Frances Harwood, Mr. B. B. Minor, and others, for valuable information furnished.

ROANE CORRESPONDENCE.*

SPENCER ROANE TO JAMES MONROE.

KING AND QUEEN COUNTY, MARCH 28, 1799.

DEAR SIR: I have to reproach myself for having omitted to write to you since your return to America. Believe me, it has not been owing to any diminution of my former friendship, and I trust you know me well enough to be convinced, that my respect for your public character has been increased, on contemplating your Republican and patriotic, (though illy requited), conduct in France.

A particular circumstance now impels me to write you. I am credibly informed that P. Henry, Esq., has offered himself a dele-✔ gate for the county of Charlotte, and that there is little or no doubt of his being elected. He has avowed, in a public speech, his design to be to arrest the progress of the State Legislature in opposing the measures of the general government; which is, as I conceive, to attack the republican cause in its last citadel. You may judge, from my connection with that gentleman, † how I am chagrined and hurt by the present aspect of his political opinions: but that regret has given place to an ardent desire on my part, to counteract him, by every means tending to defeat his schemes. It appears to me advisable to notify the above circumstances to some of my Republican friends; and I hope and trust, that yourself and your illustrious friend, Madison, will not hesitate in coming into the Legislature, on such a momentous occasion. Lest the latter gentleman not be apprized of the above circumstance, I submit it to your judgment, whether you had not better acquaint him therewith.

Be pleased to present my respects to Mrs. Monroe, and believe me to be, with much respect and esteem,

Jas. Monroe.

Yr. Mo. obt. Svt.,

SPENCER ROANE.

*These letters were furnished by Mr. E. C. Harrison, of Virginia, and by the Bureau of Manuscripts of the Library of Congress, through the kindness of its chief, Mr. Worthington C. Ford.

Roane's first wife was a daughter of Henry.