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intent, and meaning of the treaty, unless supervision over State legislation was commonly understood to be properly within the judicial prerogative. The Federal letter transmitted by Congress to the States together with the resolution makes this even clearer (if that were possible), for it declares that if its recommendation be followed, “the business will be turned over to the proper department, namely, the judicial; and the courts of law will find no difficulty in deciding whether any particular act or clause is or is not contrary to the treaty.” That Congress should have proposed to the States that they pass laws requiring their judges to hold void all statutes repugnant to the treaty would indeed be inexplicable, had the courts not possessed such authority.
The contempt of the treaty manifest in some States undoubtedly led to that clause of the Constitution, hereafter to be analyzed in detail, which provides that all treaties made or which shall be made under the authority of the United States shall be the supreme law, and that the judges in every State shall be bound thereby.
THE INTENT OF THE CONVENTION EVINCED IN TWO
CLAUSES OF THE CONSTITUTION
That the framers intended this power to be given to the Federal judiciary established by the new Constitution, and to the State judiciaries affected by it, is made clear in two provisions of the new Constitution. The discussions in the Convention which led up to these provisions, the gradual amendment of the form in which the dominant idea was originally embodied, prove that the Convention intended to establish a judicial power operating directly upon individuals in all the States, and that to achieve this end, it purposed to give to the Supreme Court the right of review of all State legislation inimical to the organic law of the Union which had been upheld by a State tribunal as not in conflict with that law and the further right to review judgments of State courts holding acts of Congress unconstitutional.
These important clauses of the Constitution, clauses upon which Webster in his great arguments in the Senate relied in support of the same doctrine,' are as follows:
This constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made, under the authority of the United States, 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
The cognate clause which, together with that just quoted, establishes the Federal judiciary upon an impregnable basis, is section 2, Article III.:
The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, etc.
Infra, pp. 89 et seq.
As will now be shown, these two clauses had their origin in the resolution transmitted by the Congress of the Confederation to the States in April, 1787, they developed side by side, and the language of one dovetails into that of the other.
As has been stated, the gravity of the situation which might arise from continued disregard of treaty obligations was keenly appreciated by the Congress of the Confederation. The first step was a resolution, unanimously adopted, March 21, 1787, declaring that State legislatures could not of right interpret, explain, or construe any national treaty, or any part of a treaty, or restrain, limit, impede, retard, or counteract its operation, for all treaties made by the Confederation were part of the law of the land. The resolution declared also that the treaty with Great Britain was obligatory on each State and that all acts of State legislatures repugnant to it ought forthwith to be repealed, and it was further resolved to address a letter to the States upon this subject. The letter, which was composed by the Secretary of Foreign Affairs and approved by Congress, besides complaining of State infractions of the treaty of 1783, urged the necessity of
* These infractions had taken the form of State laws confiscating the property of British subjects or loyalists, and releasing the patriots from their debts to all such persons, or from interest upon debts. As late as March, 1792, the British minister in this country (George Hammond) lodged with Jefferson, then Secretary of State, a formal complaint against these statutes as violations of the treaty. Jefferson replied to these charges in an elaborate letter, May 29, 1792. Jefferson takes up the various State enactments, and also, a number of State decisions, among others, Rutgers v. Waddington.
faithful observance of all its provisions, asserted the supremacy of the Federal Congress in respect to all treaties, and declared every treaty constitutionally made by Congress binding upon the whole nation. The interpretation of a treaty, said the letter, belongs to Congress alone. The State legislatures, it continued, have arrogated power they do not possess in enacting laws that decide or point out the sense in which the citizens and courts of the State shall understand or interpret articles of a treaty. The letter closed with a recital of the resolution unanimously voted on March 21st, and urged repeal by the States of all laws repugnant to the treaty between the United States and his Britannic Majesty.'
THE CONVENTION'S MODUS VIVENDI
It would seem extraordinary that the Philadelphia Convention, held at a time when treaty infractions were the subject of solemn remonstrance by the Congress of the Confederation (which steadfastly maintained its supremacy in treaty matters), should have failed to consider a modus vivendi. From the provisions of the new Constitution, just quoted, it would be assumed, a priori, that the subject had been discussed in the Convention, and that a decision had been reached to vest the Federal judiciary with the power seemingly conferred upon it by these far-reaching provisions. The inference is in accord with fact. The power of the
Journals of Congress, ed. 1801, vol. xii., 32–36; Appendix No. 7, Coxe, Judicial Power.
judiciary under the Federal Constitution does not, as was argued by McMurtrie, rest exclusively upon inference, but reposes also upon express authorization. The notion, however sedulously inculcated, that the Convention did not appreciate the meaning of the supreme law and judiciary articles is altogether erroneous. The statement, persistently made and reiterated in these later days, that nothing in the proceedings of the Convention indicates that the Convention meant to arm the Federal judiciary with the longest and most effective weapon of the State judiciary—the power to annul unconstitutional laws—is at variance with truth. Moreover, as was generally realized, the prime need of the time was the creation of a power able to coerce, not the States, but individuals. Furthermore, the Journal of the Convention unequivocally shows the views of delegates, and, apart from these utterances, the two plans urged upon the Convention—the Virginia plan and the New Jersey plan—both distinctly import an intention to give the Federal Congress some sort of negative upon State legislation. These projects were abandoned, and there was substituted the wiser notion of vesting in the judiciary a power to annul, not all laws, but those only that were unconstitutional.
AN ERRONEOUS VIEW
Honorable Walter Clark, Chief Justice of the Supreme Court of North Carolina, in an address to the Law Department of the University of Pennsyl