elected by the people, are as much the servants of the people, as the members of an ordinary legislature. For, like such a legislature, they have a superior in the people by whom they are deputed to act. Every other capacity than that, in which the people act by themselves collectively, must be secondary; must be factitious, or conventional. A doubt has already been expressed, whether any people ever did act in their former capacity: in other words, whether, in the progress of political society, there ever was a people, who retained in their own hands, to be exercised by a majority of themselves, all legislative, executive, and judi cial power. It may be even questioned whether, in the formation of any political society, the will of a majority of the people composing that society, was ever regularly, fairly, and soberly taken, before the existence of the American constitutions: and of all those constitutions, that of the people of the United States, ratified by the conventions of nine states, as it was required to be, by the convention who submitted it to the people, has the fairest claim to that sanction.

Few people have ever had an opportunity of acting with perfect freedom in their highest sovereign capacity. The customs, laws, and institutions of man, whatever be their source, whether wisdom, fraud, or violence, hold him in society; the forms of which become so interwoven with his very existence, that no revolution can suddenly and entirely change them, nor can any revolution be effected, for the improvement of that condition, without their aid. Still, however, the legitimacy of every such revolution must depend, for its test, on the great principle, that the people are sovereign. A doctrine, to which this Assembly owes its existence, this commonwealth its freedom, and these United States their independence, the people of America will never yield but with their lives. No state legislature, therefore, has a right to tell this people, that they did not make a constitution of government, which they have, themselves, solemnly declared, that they did make "to secure the blessings of liberty to themselves, and to their posterity."

And if the people of the United States are the parties to this constitution, the question, "whether any particular state has a right to instruct its representatives in the Senate of the United States?" may be easily solved, by an application of the principles maintained in an early part of this argument. Before that application is made, it will be more convenient, first, to dispose of another view of this question. Let it, therefore, for the present, be conceded, that the states have a right to instruct their respective Senators in Congress. Let it be further conceded, that the states, as separate communities, are parties to the constitution of

the United States, and have the right, which is asserted for them, to expound the meaning, and limit the operation of that

compact.

Does it follow, as a consequence from these concessions, which yield as much, as has ever been demanded by the advocates of the doctrine here impugned, that the state legislatures are the states?-That the legislatures have a right to furnish such instructions; that they are the parties to the compact? They do represent their respective states, it is true; but they represent them in their ordinary legislative capacity only; which is at most, but one of their sovereign capacities. They do not represent the states in their highest legislative capacity. Have the people of Virginia authorized this assembly, to "alter or abolish" the constitution of the state? Can this be done but by a convention? And is not the capacity, in which a people change their very bond of union, higher than that, in which, they enact ordinary laws for its welfare? There is no state in America wherein those capacities are regarded as of like dignity. It is competent for several of the state legislatures, to amend the constitutions of their respective states, but never by an ordinary act of legislation. Some of the state constitutions require a periodical appeal to be made to the people, to know if they desire a revision of their constitution of government. The constitution of Vermont provides, that in order "to preserve the freedom of the commonwealth, for ever inviolate," there shall be septennially elected "a council of censors," with power to call a convention, if they deem it necessary. So that the power even to call a convention, is here denied to a state legislature, by more than mere implication. And it may be asked, if the legislature of a state has not a right even to submit to the people, the revision of that constitution of government, under which, it exercises the whole legislative authority, how does it acquire that, of expounding the constitution of the United States?

Is there really, "no tribunal, above the authority" of the state legislatures, to decide, in the last resort, whether the compact, "made by their respective states," has "been violated?" Much to the honour of the general assembly of Virginia, it has frequently acquiesced in decisions of the state judiciary, pronouncing its own laws unconstitutional: and there is no doctrine more universally admitted in this state, at the present day, than that, which recognizes the constitutional authority of such decisions. In conformity with this just recognition of one of the most salutary restraints, provided by our republican system, upon the usurpation of power, by that branch of the government, whose power is least susceptible of precise limitation, it would seem,

that the judiciary of the United States is "a higher tribunal," than the legislature of a single state, and it is unquestionably much better adapted, by its structure and organization, to the purpose of testing, by the constitution itself, the constitutionality of a law. The committee very fairly admit this objection to the doctrine for which they contend, and state in reply, that "the proper answer to the objection is," that the judicial department also, "may exercise or sanction, dangerous powers beyond the grant of the constitution;" and that the particular resolution of the general assembly, which they seek to vindicate, "relates to those great and extraordinary cases, in which all the forms of the constitution may prove ineffectual against infractions, dangerous to the essential rights of the parties to it." The committee, here most evidently suppose a case of extreme character; such, as no constitution of government can provide for; a case, wherein all the constitutional safeguards of liberty, having been won over by corruption, or subverted by force, it becomes the duty of every man to take care of himself, under the sanction of the sacred truth, that "resistance to tyranny is obedience to God.” In such an awful condition of things, the legislatures of the several states would be criminally negligent, if they did not exercise the power, which Rome, in similar extremities, gave to her dictator, "to see that the commonwealth sustained no injury." And this is the power, which Publius ascribes to the states, when he says "it may be safely received, as an axiom in our political system, that the state governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority." In the last number of those learned, classical, and eloquent essays, which are coeval, in their production, with our admirable constitution of government, and bid fair to travel down with it to future ages, and to render the names of their illustrious authors, as immortal, as that liberty, which their labours essentially contributed to preserve and to perpetuate, there is this further allusion to the checks, provided by the constitution, upon the spirit of encroachment. "The executive and legislative bodies of each state, will be so many centinels over the persons employed in every department of the national administration; and, as it will be in their power to adopt and pursue an effectual system of intelligence, they can never be at a loss to know the behaviour of those, who represent their constituents in the national councils, and can readily communicate that knowledge to the people." This assembly considers this paragraph, as a volume of authority, on the question before it. It will add, that neither in this, nor in any other cotemporaneous exposition of the constitution of the United States, VOL. IV. X

assailed, as it most zealously and eloquently was, on the ground, that it tended to annihilate the state governments, or, in the language of the day, to consolidation, can there be found an allusion, however distant, to the right of a state executive, or a state legislature, to instruct the senators in congress of its particular state. Had such a doctrine found a place even in the imagination of the numerous and zealous friends of the new constitution, would they have failed to avail themselves of so powerful an argument, in order to reconcile the proposed plan of government to the jealous pride of the states?

And if the sages of the convention, among whom, for his wisdom was of early growth, was the distinguished author of the report, which has been just reviewed, never thought of this doctrine; or claimed for it, the potent efficacy now sought to be given to it, it may also be remarked, that it was left for one of the authors of the Federalist, to sustain by argument, ten years after the constitution had been in operation, this novel doctrine, and by repetition to confirm its practice. It had not, for its origin at that time, any defect of confidence in the senators, by whom this state was then represented, in the congress of the United States. Not only the memorable report itself, forbids such a surmise; but their well known conformity in opinion, with the assembly which instructed them, forbids it likewise. The authority of instructions, was not then exerted by the legislature, for the purpose of controlling the free exercise of the judgment of the representatives of the state, but, as has been observed, "only to add the greater weight to their opinions."

It is believed by this assembly, that the first exercise of the power of instruction, for the former purpose, occurred in the last session of the general assembly; and then, from no want of respect for the senator who disobeyed those instructions, for he had been recently elected to the high station, which he occupies, by the almost unanimous suffrage of the preceding legislature; but from a belief, that the instructions, about to be given, would change the vote, which, if at liberty, he would otherwise pronounce upon the momentous question, then depending in the congress of the United States. And for this reason, if for no other, it has appeared to this assembly, proper to give the doctrine of instructions, at the present time, a consideration, worthy of the important consequences which might result from its frequent practice.

To proceed with this inquiry, therefore, this assembly asks of the advocates of the doctrine, against which it contends, to show (under the concession which has been made, with a view to the further progress of this argument, that the states, as communities

of individuals, are parties to the Constitution of the United States,) how those individuals have disposed of the power of instruction, which, it is said, the nature of representative government requires that they should possess? Does it suffice to answer, "that they give their general attributes of sovereignty to their state legislatures?" This surrender must have been made, at the time when the constitution of the state, the instrument of the grant, was notified by the people. But, at that time, the Constitution of the United States did not exist; and a power to control one of its legislative organs could not have been then conveyed, for this, if for no other reason. It is in vain, therefore, to search into the constitutions of the general and state governments, for any such express grant. If claimed, by implication, in behalf of the legislature of the state, "because the power of legislation is a sovereign power?" the reply is obvious. All power, uncontrolled by a superior, is sovereign; that is, supreme. The power of interpreting or the power of executing the law is as much a sovereign power, as that of making the laws themselves. And the whole sovereign power of a nation, as has been shown, in a former part of this inquiry, embraces every possible subject of legislation, and can be restrained only by the law of nature, or of God. Of this sovereign power, the people of the United States have delegated to the general, or national government, one part; to the governments of the particular. states, belong as much as the people, distributed into communities, or states, have respectively thought proper to give them; and the other part retained by the bills of rights of the different state constitutions, or reserved by the whole people, to those several communities, by the constitution of the United States, remains in the people themselves, where their sovereignty, in virtue of which, all those delegations of power have been made, for ever resides.

Of that portion of sovereign power delegated by the people of the several states, to the state governments, and secured to those governments, by the constitution of the United States, the act of the whole people, the legislatures of the respective states, possess but a part. The state judiciaries, and the state executives have also, their portions of sovereign power, or of sovereignty, if those expressions are deemed synonimous. Each power, moving within the orbit prescribed to it by the people, is sovereign, that is, liable to no other control than that of the constitution, the act and law of the people themselves. The power of instructing the senators of the United States as it has been already remarked, has been expressly delegated, by the people, to none of those state authorities. If assumed by implication,