the acceptance of that proposition by the agent of those devisees, whose letter of acceptance is set out in totidem verbis-and concludes with providing that, upon the execution of a deed by Denny Fairfax, or those having title under him, or the said Thomas lord Fairfax, extinguishing, on behalf of this commonwealth, his or their title to all lands lying within the Northern Neck, which, by the terms of the above recited proposal and agreement, he or they are bound to relinquish all claim, right, and title of the commonwealth of Virginia in or to any lands lying in the said Northern Neck, which is, by the terms of the said proposal and agreement, to be relinquished, shall, from thenceforth, be extinguished, null, and void." Does this act extinguish immediately the claim of the commonwealth? No: that extinguishment still depends on something to be afterwards done by the representatives of lord Fairfax, and which is made a condition precedent to the extinguishment of the commonwealth's title. It is, then, not merely a compact, but an executory compact, too, dependant on an act, in pais, to be afterwards done by Fairfax, and until this act, in pais, should be done, it remained wholly inefficacious, operating neither on the one party nor the other.

But let us concede that this act of compromise shall be called not a mere matter of fact, but a private act of assembly, which is certainly the highest character to which it can pretend: would this have authorized the court of appeals to notice it on the appeal of Hunter against Fairfax? Yes, it may be said, because by the general law of the state private acts of assembly may be given in evidence without being pleaded.→→ But let us look a little more closely at this provision of our law. By the common law of England a private act of parliament must be pleaded, like any other matter of fact, or it cannot be used upon the trial; the effect of our law then is to alter this principle of the common law, and to permit a private act of assembly to be used at the trial, without having been previously pleaded-it may, says our law, be given in evidence. When is evidence given? At the trial. Of what is evidence given? Of matters of fact. To whom is evidence given? To No. XXIII. Y y

juries, the constitutional triers of fact. In reply then, to the position that this being a private act of assembly might have been given in evidence, the answer is, that it was not given in evidence: and it is too late to talk of giving evidence, when a cause is standing for judgment before a court of appeals, upon the record.

But let us admit that this process of reasoning, simple and conclusive as it appears to be, has no force in it, and that the court of appeals was nevertheless authorized to consider this act as a letter deposited with them for the purpose of settling all controversies arising under it. I ask of what avail this letter, considered in itself, could possibly have been, in settling or, in the remotest degree, affecting any controversy whatever. On the very face of this letter, its operation is expressly predi cated on an act to be afterwards done on the part of Fairfax; for its provision is that upon the execution of a deed by Fairfax, the title of the commonwealth should be extinguished. This letter, then, was to derive the inception of its power, from the deed to be afterwards executed by Fairfax; and since that deed was the express and essential pre-requisite to quicken it into life and motion, until that deed came, the letter was a dead letter; a caput mortuum merely. Admit, then, that the court of appeals could have looked at it: it would have decided nothing, unless they exercised a power which has been proven not to belong to them; of supplying or presuming the all-important fact that the deed contemplated by the act, had been executed by Fairfax; without which, I repeat it, the act itself, was mere brutum fulmen.

Hence, sir, I reach the conclusions that this compromise formed no part of the record; that it could not have been pro perly noticed by the court of appeals in revising the judgment of the district court of Winchester, that if noticed, it was calculated to produce no effect, without supplying a fact which the appellate court had no power to supply; and that therefore, the compromise is out of this controversy.

I admit, nevertheless, that according to Mr. Munford's report of this cause the decision of this court did proceed on the

compromise only; and I admit, also, that if Mr. Munford's report be the record of the cause, it may be doubtful whether the Supreme court of the United States had jurisdiction of this case, on a ground which has not been yet noticed. The act of congress gives jurisdiction only where the decision of the court is against the right set up under the treaty. Now it appears by Mr. Munford's report that the two judges who constituted the court of appeals in this cause, were divided in opinion as to the protection given by the treaty to Fairfax's title: but a divided court of appeals, according to our laws, affirms the judgment of the court below; so that, so far as this court acted within its legitimate sphere, as a court of appeals, by restricting itself to the case on the record, the decision of this court was not against, but in favour of the right set up under the treaty; but though we rose by the record, we fell by the compromise, the judgment of this court being in fact, against us; and, hence, if it had been competent to the Supreme court of the United States, to have considered Mr. Munford's report as part of the record, they might have been somewhat perplexed, between the decision in our favour, de jure, and the decision against us, de facto, to ascertain their jurisdiction; from this perplexity, however, they were relieved by the act of congress, which requiring them to look to the record and the record only, they saw there nothing but the right set up under the treaty, and the naked decision of this court against that right.

I had apprehended that Mr. Williams would have laid hold of this point, untenable and evanescent as it is; and have insisted that according to the report of the case it appears that the decision of this court was not against but in favour of the application of the treaty to the right set up under it. Had he done so, however, the answer would have been obvious. "Sir, you change the terms of the question propounded to us by the court, and dictated to the court itself, by the act of congress; we are not asked whether it appears by the statements of the reporter that the decision of this court was against the applicaYon of the treaty to the right set up under it. But we are

asked whether it appears by the record, that the decision of this court was against the right set up under the treaty. Again, sir, even if you look from the record to the reporter, although you find that the divided court decided in favour of the appli cation of the treaty to the right set up under it, yet you find, also, that the court decided, finally against the right itself, which was set up under the treaty. It does not vary the case that their decision was on the ground of the compromise: it is not the less a decision against the right set up under the treaty; and such a decision as, Mr. Leigh has justly argued, equally founds the appellate jurisdiction of the Supreme court whatsoever the ground of the decision may have been. But the natural candor and dignity of Mr. Williams' mind disdained an evasion of the question so poor and superficial, and I mention it now, rather to do just honour to him, than to dispel, by anticipation, any transient doubt, which might probably flit across the mind of the court, from this view of the subject.

But whatever may have been the ground on which the court of appeals who decided this cause placed their judgment, according to the evidence of the reporter, this court, which I have now the honour of addressing, must, like the Supreme court of the United States, decide the present question by the record only: and I hope it is by this time very clear that, tested by the record, comprehending the judgment of the court of appeals, this was a case in which the application and construction of a treaty were drawn in question; in which the decision of this court was against the right set up under that treaty, and in which, therefore, the jurisdiction assumed by the Supreme court of the United States was in strict consonance with the 25th section of the judicial act of congress.

I come now to the second question propounded by the court which is, whether the power now exercised by the Superior court of the United States is justified by the constitution.' As the power now exercised by the Supreme court is in strict conformity with the 25th section of the 'judicial act of congress, Į understand the question intended to be submitted to be whether that section itself be justified by the constitution; and it is

in this light that Mr. Williams, whom I am answering, has considered and discussed it.

This, sir, is a question of such extreme delicacy, of such awful moment, and, withal, lies so wide of the ordinary track of forensic investigation in Virginia, that I feel much difficulty and reluctance in approaching it. It has not been, I think, until within the last year or two, that the constitutionality of an act of congress has been made a question, in any court of any grade, within this commonwealth. I mention it to the honour of the state; for I think it a proof that our courts have none of that baleful spirit of jealousy which would excite them to be prompt and forward in endangering the peace of the union, by raising needless contests for power with the general government. Other states, perhaps, envious of the pacific disposition, the good order, and general prosperity of our commonwealth, might be ready enough to impute to wounded pride, the refusal to register the mandate reversing your decree; but those who have the happiness to know the real temper of this court are perfectly satisfied that your honours would be much better pleased to find the law in question constitutional, than to be put to the painful necessity, from a high sense of duty, of interrupting the current of jurisprudence marked out by that law. It is under this impression of the sentiments of the court with regard to this question that I shall proceed to examine it, with the most unreserved freedom.

Whether the act of congress, which requires you to register the mandate, be justified by the constitution, is a question which cannot be decided without a clear understanding of the constitution, both as to the relations which it establishes beItween the state and federal governments, and the character of the particular appellate power now in question.

How is the constitution to be construed? What kind of inestrument is it? It is a compact between the states, for the good of the whole, for which they have all paid the highest consideration; a portion of their national sovereignty: hence there results a reciprocal claim on each other, for the faithful observance of its provisions; considered as a compact, it is as a gene