Mr. Phillips, in order to support his opinion, quotes the decision of the Court of Common Pleas, in England, in the case of Hoare et al. v. Coryton, 4 Taunt. 560. (See Phillips, 117, in note.) But that case is not at all applicable to the present question. It was the case of an account stated between a pretended creditor of a bankrupt and his assignee. The closing part or statement of the account had no date, and it did not appear, even on the face of the paper, otherwise than by the dates of the items of debt and credit, whether it had been signed before or after the commission of the act of bankruptcy. Now when we consider, that the fraud which is most frequently committed in bankrupt cases is the setting up of fictitious creditors, to increase the votes in favor of the bankrupt and to secure dividends for his use; when we consider, that the books of the bankrupt, if fairly kept, were much better evidence than that stated account, and above all, that it had no date, we can see nothing in this decision, which in the least militates against the principle established in Searle v. Barrington, and this convinces us still more of the little reliance to be placed on the English compilers of law books.

I wish my task were ended here, and I was not bound to take notice of another authority, much more respectable, than that of Mr. Phillips, or even Lord Ellenborough, sitting at nisi prius. But, I cannot pass in silence, the case of Roseboom v. Billington, decided in 1819, by the Supreme Court of the State of New York, and reported in 17 Johns. 183. I lament to see in our tribunals such striking instances of the influence of modern English opinions. Chief Justice Spencer tells us, that we have at this day a much better understanding of the distinct provinces of judge and jury, than they had in England at the time, when Searle v. Barrington was decided. It is pleasant to lay such a flattering unction to our souls, but for my part, I must say, I entertain no such presumptuous idea. The reasons, after all, which Chief Justice Spencer gives for thus subverting the old established law, are no other than those which are adduced in the case of Searle v. Barrington, in the King's Bench, Exchequer Chamber, and House of Lords, and every where overruled; to wit, that it is against the general rule of law, that a man should be allowed to make evidence for himself.

I admit the principle, which is a sound and judicious one, but here the question is only whether a presumption, of all presumptions the most unfavorable, shall be permitted to be rebutted by another presumption, that which is produced by a receipt of interest indorsed on the bond. Surely, I would not allow such a receipt to be admitted as evidence on the real merits of the case; but as Lord Hardwicke justly observes, 'it is only consequential evidence to take it out of the presumption arising from the length of time.' It is presumptive evidence, against presumption without evidence, and I can see no rule of law violated in the case of Searle v. Barrington, which, in this state, at least, I consider to be law, binding on courts, juries, and parties, and which nothing short of an act of the legislature can modify or alter.

My opinion, therefore, on the question submitted is clearly and unhesitatingly in the affirmative.

I ought to have added, that Chief Justice Spencer, in his opinion in Roseboom v. Billington, says that he can see no difference, between admitting in evidence a receipt written or indorsed by the party himself, and parole evidence of his having affirmed at a particular time, that he had received a particular payment. In every part, I see a material difference, because words spoken are without consequence, and an indorsement on a bond, tending to vary its legal effect, would if false, be a forgery and expose the writer to the penalty of the law. I say it would be forgery, without having considered the point with any attention, my impression at present is, that it would be; if not, it certainly would be a high misdemeanor, particularly if the party had obtained a verdict, and imposed on a court, and jury by means of it.'

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D.

1 By the Stat. 9 Geo. 4, c. 14, s. 3, it is provided that no indorsement or memorandum of any payment, written or made upon any promissory note, bill of exchange or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment so as to take the case out of the said statutes' of limitations. ED.

ART. III.-THE NULLIFICATION QUESTION.

State Papers on Nullification: including the public acts of the Convention of the People of South Carolina, assembled at Columbia, Nov. 19, 1832, and March 18, 1833; the Proclamation of the President of the United States, and the Proceedings of the several State Legislatures, which have acted on the subject. Collected and published by order of the General Court of Massachusetts, under the direction of the Committee on the Library. Boston. Dutton & Wentworth, Printers to the State. 1834. 8vo.

pp. 380. We do not propose to inflict upon our readers a discussion of the much vexed, worn out, and, we hope, finally settled question of nullification: a discussion, which would lead us out of the highway of the law, in which it is our intention to travel, and compel us to trespass upon the political enclosure of some one of the contending parties of the day. But, availing ourselves of the opportunity, afforded by the liberality of the state of Massachusetts, in ordering the publication of the work, whose title is above given, we shall attempt to preserve, in the pages of our journal 2 report as it were, of the great constitutional question of nullification, and its decision by the people.

The alleged unequal operation of the protective system,' as it is called; the supposed peculiar hardship and injustice of its operation upon the agricultural interests of our southern brethren; and the attempts, which have been made by the latter, for the last ten or twelve years, in the halls of Congress, to induce its abandonment; - are already matters of legislative history, perfectly within the recollection of our readers. In these contests, none of the southern states were more active, or more ably and ardently seconded by their representatives, than the state of South Carolina. Failing in all their known constitutional attempts at redress, the legislature of that state resorted to a remedy, which, though it had been vaguely and dimly floating about in the political brains of our southern statesmen, for the last fifty years, had never as yet been thought of as a practical measure. They passed an act on the 26th of October, 1832, 'to provide for the calling of a

convention of the people,' for the avowed purpose of considering and determining upon the means of rendering inoperative, within the limits of that state, those laws of Congress, which were supposed to have been enacted, with a view to protect domestic manufactures, on the ground of their alleged unconstitutionality.

In pursuance of this act, delegates were chosen by the people, to constitute the convention, which assembled on the 19th November, 1832, and was organized, on the same day, by the choice of James Hamilton, Jr., governor of the state, as President, and Isaac W. Hayne as Clerk. On the same day, also, the act for calling the convention was referred to a committee of twenty-one, with instructions to consider and report thereon, and especially as to the measures proper to be adopted by the convention in reference to 'the violations of the constitution of the United States, in the enactment by Congress, on divers occasions, of laws laying duties and imposts for the purpose of encouraging and protecting domestic manufactures, and for other unwarrantable purposes.' This committee made a report, accompanied by an ordinance, an address to the people of the state, and an address to the people of the United States, all of which were adopted. The report occupies nearly thirty octavo pages, and goes with much detail into the history of the rise and gradual developement of the protective system, its alleged injustice to the southern states, and the supposed right of a state, upon the doctrine of reserved powers, constitutionally and peaceably to obstruct the execution of the laws of the United States, within her territory, when, in her judgment, those laws are unconstitutional. The ordinance is entitled, 'An ordinance to nullify certain acts of the Congress of the United States, purporting to be laws laying duties and imposts on the importation of foreign commodities;' and by it, the people of the state of South Carolina declare and ordain, that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and more especially an act entitled, "an act in alteration of the everal acts imposing duties on imposts," approved May 19, 1828, and also an act entitled, "an act to alter and amend the

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several acts imposing duties on imposts, approved July 14, 1832, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof, and are null, void, and no law, nor binding upon this state, its officers or citizens; and all promises, contracts, and obligations made or entered into, or to be made or entered into, with purpose to secure the duties imposed by the said acts, and all judicial proceedings, which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void.'

The other provisions of the ordinance relate to the measures to be taken for its execution. It concludes with the declaration, that the people of the state of South Carolina, will not submit to the application of force, on the part of the federal government, to reduce the state to obedience; but will consider the passage, by Congress, of any act authorizing the employment of a military or naval force against the state, her constituted authorities or citizens, or any act abolishing or closing the ports of the state, or any of them, or otherwise obstructing the free ingress or egress of vessels to and from the said ports, or any other act on the part of the federal government, to coerce the state, shut up her ports, destroy or harass her commerce, or to enforce the acts declared to be null and void, otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union; and that the people of this state will, thenceforth, hold themselves absolved from all further obligation to maintain or preserve their political connexion with the people of the other states, and will forthwith proceed to organize a separate government, and do all other acts and things, which sovereign and independent states may of right do.' The addresses to the people of the state of South Carolina, and to the other states, contain an exposition of the reasons, upon which the ordinance. is founded and a justification of the course pursued by the state of South Carolina.

The Convention, having thus accomplished the purpose for which it was called together, and having provided for its future reassembling, at such time as the president should appoint, recommended the observance of Thursday, the 31st of January, 1833, (the day previous to that fixed for the going into operation of the ordinance,) to be observed by the citizens as a day