pursuance thereof, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding," and this section, he argues, fully bears him out in the assertion that the Constitution divests the state courts of their sovereign power of final decision. Strange logic, this! A clause in the Constitution which simply makes the constitution itself the fundamental law of every State in the Union; a law, which in terms, charges the State courts with the construction of the Constitution, is made the pretence for wresting this power from them. What do you infer from this clause except that the states, the parties to this instrument, say, we hereby agree that we shall pass no law contravening this constitution, and our state courts are authorised to determine whether any law we may pass, be liable to that objection. Without such a clause it might have been the duty of the State courts to have said, Being the courts of a sovereign State we can know no higher law than the Constitution of the State, and it was to avoid this difficulty that the states agreed to invest their own courts with the power to decide upon an alleged conflict between their own legislation and that of the new government. In all suits instituted in the Federal courts, such an arbiter was provided in the Supreme Court of the United States; by this provision arbiters were provided for all other cases that could arise; the work was now complete, orbis teres atque rotunda. Having thus disposed of the veteran champion, we now turn our attention to the youthful squire who has his spurs yet to win.

Judge Lake in his opinion, Stevens vs. Manning, after repeating Judge Story's "historical facts," Story himself the historian, says the Federal doctrine has been universally acquiesced in. It will be remembered he is speaking of the constitutionality of the 12th section, that whicy provides for the transfer. Remember now that that authority to which he himself commends us, we mean Judge Story, sneers at this 12th section, intimates even that its constitutionality may be doubtful, thinks however, that it may be sustained as a mode of exercising the power of revision, but admits that it must fall unless it rests upon that basis-see 1st Wheaton.

Now Judge Lake considers that it may stand by itself, and that the Virginia court who denied the constitutionality of the 25th section, admitted the validity of the 12th. If Judge Lake had examined the Virginia reports with his usual care, he would not have fallen into this error. Judge Roane on the part of the court, 4 Munf: 43, expressly disclaims any intention of expressing an opinion on the 12th section, because the question was not involved. in the case before the court.

Again, in 1817, in the case of Williams vs. Price, 5 Munf, 507, an appeal from a denial of a petition to transfer, the court decided that the case was not included in the terms of the act, but takes occasion to remark, "The court decides this point without reference to the constitutionality of the clause. It has no hesitation, however, in saying that it does not consider that the case of Brown vs. Crippin and Wise, 4 H. and M., (in 1089) decided that question.

The question of constitutionality was not made in that case and the decision turned exclusively upon the construction of the act. That question is to be considered therefore as still open, except so far as it may be affected by the principles settled by the court in the case of Hunter vs. Fairfax." He then says that the reason they did not at once decide upon the constitutionality, was the fact that as the question did not absolutely arise in the case, the court, which was very thin, only three out of five judges being present, preferred to reserve the question for a full bench. In other words, they desired to give an unanimous decision upon the unconstitutionality of this section, as they had done upon the 25th.

But we have not done with authorities. This clause ignores the right of the plaintiff to elect his forum. Judge Lake commends it on this very account, declaring that it thereby fulfills the spirit of the Constitution which intended to interpose the National shield in behalf of aliens, &c., whether they be plaintiffs or defendants. Now, Judge Lake comes, we believe, from New York-whether he does or not, as a Jurist, he will not deny that Greene C. Bronson is one of the soundest and most logical expounders of the law that this age has produced. Well, in the case of Delafield vs. The State of Illinois, before quoted, Judge Bronson says, "It has, I know, been suggested that the plaintiff has not the right to elect his forum, where he might sue in the Federal courts. (Martin vs. Hunter, lessee: 1 Wheat. 348. But there has been no such decision, and I do not think it probable that the point will be so settled.,' Here he expressly alludes to Story's feeble attempt to sustian the constitutionality of the 12th section; he denies, the case not presenting the point, that it was the opinion of the court, and that it was or could be sustained.

Again this 12th section imposes a command upon a State judge; enjoins upon him a duty to be performed. How often has it been decided that Congress have no such power? See Prigg vs. Commonwealth of Pennsylvania, 16th Pet; 598. Judge McLean says, "It was conceded on the argument that Congress has no power to impose duties upon state officres; Congress can no more regnlate the jurisdiction of the state tribunals, than a state can define the judicial power of the Union. "Taney, Story, Daniel, all deliver opinions to the same effect. See also matter of Paul Bruni, 1 Barb. Sup. Ct. Rep. 187. U. S. vs. Lathrop, 17 Johns. N. Y. Rep. 4. Ex parte Poole, 2 Va. cases.

But again, it is admitted that the grant of a power necessarily carries with it the means of enforcement: the one is a vital part of the other. If Congress have power to order the transfer, they have the right to compel it, and conversely, if they have no power of enforcement, they have no power of command. Now is Congress empowered to authorise the circuit courts of the United States to issue a mandamus to a state judge compelling him to grant the petion of transfer? or would a writ of prohibition be more applicable? Why Judge Story in 1 Wheat. says, that in case of refusal upon the part of the state judge, the general government is powerless to enforce the act. Justice Johnson, in the same case, rejoices to know that

it is admitted on all hands that compulsory process cannot be issued from the federal courts to a State officer. In Wadleigh vs. Veazie, 3 Sumner, Rep. 168, Story lays down the same doctrine, and says that is a necessary evil of our complex form of government, that the courts of the two sovereignties may frequently have hold of the same subject matter, between the same parties, necessarily resulting in a conflict of decision. The same difficulty is alluded to in the late case of Piquignot vs. Penn. Rail Road Co. 16. Howard 104. In Baldwin vs. Hale, 17 Johns: Rep: 271. The court The court say, "The Circuit Court of the United States in relation to this court is neither a superior nor an inferior court, but is to be regarded as the court of another government." The federal courts being thus denied by general consent this power of mandamus, an advocate of this 12th section once turned in utter despair to the Supreme Court of the State of New York to entreat them to compel a State judge to obey the requirements of this section. He unluckily fell upon this same Judge Bronson, and returned with a flea in his ear. Why, said Bronson, if the General Government have the right to direct this transfer, it is the business of the federal courts to enforce it, adding with a little sly, judicial humor, "it would be impertinent for us to interfere with their jurisdiction.-See People vs. the Judges of N. Y. 2 Denio 198.

With these decisions they are welcome to the 12th section. They may be permitted to show their teeth as long as they are so muzzled, that they are prevented from biting.

But, says Judge Lake, we are entrenched in precedent. This is the old story, (no pun intended) and amounts to nothing more than to this: that if the exercise of this power by the general government be a wrong, it is a very ancient one, and one that has been frequently perpetrated. The opponents of Galileo said, if it be an error to suppose that the sun moves round the earth, it is a very ancient one and we proscribe all corrections of ancient errors. The Feejee cannibal might make the same answer to a christian missionary, and meet the approbation of Judge Lake and the advocates of hoary error. Oh yes, we admit that Federal courts that were turned over by the elder Adams to the Federal party just as he was going out of power, did faithfully execute the trust confided to them; and did consistently with their avowed political opinions, most conscientiously uphold all the powers claimed for the national government by the party to which they belonged. Judge Story frequently boasts of this.He says, we have stuck to this doctrine, and we mean to stick to it. There, says Judge Lake, if the power never existed before, such resolute and determined assumption of it, would create it. The Hon. gentleman exercises, we believe criminal as well as civil jurisdiction.Did he ever carry his theory so far as to charge a jury in the case of an old offender that the claim of the defendant to appropriate the property of others had by frequent exercise ripened into a legal right? We think not; indeed we will undertake to say that Judge Lake applies his theory to Federal politics alone.

But let Judge Lake speak for himself. He says, alluding to the Supreme Court of California:

"The court seem to think, by the juxtaposition of the judgments of the highest court of the nation on the one side, and the authority of Mr. Calhoun on the other, that questions of law are always open, and are to be determined rather by abstract reasoning than by precedents and the decisions of courts. I cannot take this view of the duties of a judge. Courts of justice, however important their functions, are confined within limits, and in some respects narrow limits.

"With entire respect I may be permitted to remark that Mr. Calhoun, however eminent as a statesman, was not a judge, nor had he any other position that would entitle his opinions, upon legal questions, to the weight of judicial authority. It is to the opinions of judges acting on cases regularly before them, that we are bound to look for our guide. There is no more striking feature of the law we administer than its strict and almost religious adherence to precedent."

Now we say, the doctrine of stare decisis is a doctrine of convenience, to be applied merely to the conventional rules of municipal law. To attempt to solve a great constitutional question by the same principles that are applied to the law of promissory notes, is, indeed, to sink the statesman in the lawyer. Truth is immutable, and a thousand repetitions of error do not alter its nature. When Judge Lake swore to support the Constitution of the United States, he partook, not to speak it irreverently, of the communion cup of our political faith. Upon the altar of his country he pledged himself to defend the Constitution from all assaults, come they from what quarter they might should the legislature of California assail it, there stands the faithful sentinel in its defence; should the Supreme Court of the State disregard its provisions, they find in this "defender of "the faith" a stern reprover; should the national legislature attempt to surmount its barriers, they are foiled by our faithful protector; but alas! the words-the Supreme Court of the United States are the "open sesame" to his conscientious scruples; and we find that Judge Lake has sworn to defend the Constitution against all and every person, saving and excepting always their honors, the judges of the Federal judiciary.

It has been said that no lawyer has ever figured as a statesman. Is it true that the study of this renowned science has a tendency to restrict the human intellect to its own narrow limits? How else is it that a man of the marked abilities of Judge Lake draws a distinction between a legislative and judicial construction of the Constitution? Senator Woodbury is sworn to support the Constitution; he declares a hundred times in debate that Congress possess no power to incorporate a bank; Senator Woodbury becomes a Judge of the Supreme Court, and--presto! change!-we should find him, upon Judge Lake's theory, solemnly swearing the bank constitutional upon the faith of the precedent of McCulloch vs. The State of Maryland: Can common law be so opposed to common sense?

We deny that constitutional questions, great questions of civil government, all-absorbing

the government itself assumes the form of an oligarchy.

If in all this there is a word derogatory to the judicial ability of Judge Lake, it does injustice both to us and to him. For that gentleman in every relation of life we entertain the highest respect. We think that he has committed a great error, but it is one that he shares with a numerous and respectable party, and is the necessary result of those tendencies which lead him to adopt the name and principles of the "Whig" party.

We are aware it will be urged that there is little practical utility in the theory known as the doctrine of "State Rights." We know that it has become fashionable with those who are ignorant of the meaning of terms, to stigmatize it as an abstraction, whilst it is considered by some even as a species of political lunacy. And yet we know, however it may have been abused by some of its extreme and over-zealous advocates, that, in its simplicity and purity, it constitutes the corner-stone of our national edifice. It is this doctrine which teaches, the smaller the political community, the greater the identity of interests, and the more complete the adaptation of any general law to the wants, necessities, and desires of each particular individual; that such little communities may preserve all the advantages accruing from identity of interests, and avoid all the danger from foreign aggression, to which their weakness would expose themby a confederated union of little sovereign, ties, for the sole purpose of general defence. The old Articles of Confederation and the existing Constitution were both formed to effect this object. As to the principles involved, they rest upon a common basis; they differ only in the means by which the end is to be attained. It is to this distinctive feature of "sovereign" local governments that we are indebted for the expansive capabilities which have enabled us to stretch the Union from the shores of the Atlantic to those of the Pacific. With this feature

preserved, there are no territorial bounds to this grand confederation of sovereign States. But should we, regardless of this beautiful principle, reduce the States to the condition of provincial governments, subjecting to a common law and a common rule the whole people of this great empire, differing as they do, in manners, customs, habits and institutions. with conflicting interests, arising alike from the natural differences of soil, climate and geographical position; should we advance another step towards consolidation, then, will the attempt to cement the Union but serve to shatter it into fragments. The signs of the times all point to this result. The powers of the General Government are the great bone of contention between the States of the Union; the Federal Government is watched with a jealous eye; the exercise of even doubtful powers will sound the tocsin of dissolution; moderation and forbearance upon the part of the advocates of Federal power, can alone save us from destruction. Never was the doctrine of strict construction more practically valuable, and never was it more apparent, that the integrity of this great and glorious Republic depends upon a faithful adherence to the despised doctrine of "State Rights."

It may be asked why we have thought it necessary to add any thing to the able and luminous argument of Judge Heydenfelt in Gordon vs. Johnson. We should have been well content to have left this whole subject to the eloquent pen of that distinguished jurist; but there are political considerations connected with the question from which he was in a manner excluded by the judicial form in which the subject was presented to him.

We have done. Upon this subject we have spent some study and reflection; but we are amply repaid for our trouble if we have done anything towards satisfying those who profess to belong to the State Rights party, that this question involves one of the most important of those rights, and that the act of Congress is a gross assumption of federal power.