provided, that no amendment, which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. necessary? 236. CONGRESS MAY PROPOSE AMENDMENTS, &c.-These terms is the Presi need no definition. Upon a call of Congress in regard to the sub- dent's apmission of the fourteenth amendment to the legislatures of the proval States, President Johnson more than intimated an opinion, that the resolution proposing the amendment ought to be submitted to the President's approval. But the practice has been otherwise; and as the reason for such a rule is superseded by the "two- 66-70. thirds" vote, the rule itself ought to cease. It has been held that 275–277. the approval of the President is not necessary. Hollingsworth v. Virginia, 3 Dall. 378. All the amendments have been proposed to 244, 274, 275. the legislatures; none to conventions of the States. See Federalist, No. 43; Story's Const. § 1826-1831; 1 Tucker's Black. Com. App. 371, 372. The amendments when made are binding upon the States. 242. ARTICLE VI. did the [1.] All debts contracted, and engagements entered What debts into, before the adoption of this Constitution, shall be United as valid against the United States, under this Consti- assume? tution, as under the Confederation. 237. UNITED STATES TO PAY THE DEBTS OF THE CONFEDERATION.—This was but asserting a principle of moral obligation, which always applies to revolutions. See Story's Const. § 18321835; Journal of Convention, 291; Jackson v. Lunn, 3 Johns. Cases, 109; Kelly v. Harrison, 2 Id. 29; Terrett v. Taylor, 9 Cr. 50; Rutherford Inst. B. 2, ch. 9. § 1, 2; ch. 10, § 14, 15; Vattel, 'Prelim. Dis. ch. 1, § 1; ch. 5, § 64; ch. 14, § 214-216; Grotius, B. 2, ch. 9, § 8, 9; Federalist, Nos. 43, 84; 1 Tuck. Black. Com. App. 1368; Confederation, Art. XII. ante, p. 19. The principle is, that revolution ought to have no effect whatsoever upon private rights and contracts, or upon the public obligations of nations. Terrett v. Taylor, 9 Cr. 50. States supreme land? [2.] This Constitution, and the laws of the United What is the States which shall be made in pursuance thereof, and law of the 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 What is tution? 2. 195, 242. 2, 67, 68. be bound thereby, any thing in the Constitution or laws of any State to the contrary not withstanding. 238. THIS CONSTITUTION creates the government. Of course it the Consti- stands paramount. And if any law of Congress, treaty, or State law, be found to be a plain infraction of this Constitution, they will be held to be void. The object was to establish a government which, to the extent of its powers, is supreme. Story's Const. 1837; Ableman v. Booth, 21 How. 517, 520. A law, by the very meaning of the term, includes supremacy. Story's Const. § 1837. And the government must be strong enough to execute its own laws, by its own tribunals. Ableman v. Booth, 21 How. 517. The supremacy could not peacefully be maintained unless clothed with judicial power. Id. 518, 519. This clause fully compared with the judicial power. Id. 179, 245, 195-198 What is a law? 246. 195, 203. 211. 138. 239. "AND ALL LAWS OF THE UNITED STATES WHICH SHALL BE MADE IN PURSUANCE THEREOF."-A LAW is a solemn expression of legislative will. Louisiana Civil Code, Art. I. It is a rule of action. It is a rule of civil conduct prescribed by the "supreme" power in a State. 1 Bl. Com. 44; 1 Kent's Com., Lect. XX. p. 447. It includes supremacy. Story's Const. § 1738. See Federalist, Nos. 33, 64; Gibbons v. Ogden, 9 Wh. 210, 211; McCulloch v. Maryland, 4 Wh. 405, 406. All such laws, made by the general government, upon the rights, duties, and subjects specially enumerated and confided to their jurisdiction, are necessarily exclusive and supreme, as well by express provision as by necessary implication. Sims' Case, 7 Cush. 729 And the general government has the power to cause such laws to be carried into full execution, by its own powers, without dependence upon State authority, without any let or restraint imposed by it. Id. A law is made in pursuance of the Constitution, whenever it is enacted by a constitutional quorum of Congress and approved by the President; or, being returned with his objections, is passed over the veto by the necessary two-thirds vote. It then becomes the supreme law; and is generally regarded as binding until decided to be unconstitutional by the Supreme Court of the United States, in a proper case arising upon the law. After grave consideration, cases might arise where, after the laws had been passed, with all constitutional forms and time, and placed on statute books, it would be the duty of the executive to refuse to carry them out, regardless of consequences. This would be involving the country in a justifiable civil war. President Johnson's Message, 3d Dec., 1867. The editor cannot give this sentiment without expressing his disbelief in its correctness. And The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution. as the courts of a State, and the courts of the United States, might, and certainly would, often differ as to the extent of the powers conferred by the government, it was manifest that serious controversies would arise between the authorities of the United States and of the States, which must be settled by force of arms, unless some tribunal And no power is more clearly conferred by the Constitution and laws of the United States, than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, &c. Id. 525. 138. 240. A TREATY is a solemn agreement between nations. Fos- Define a ter v. Neilson, 2 Pet. 314. treaties? treaty ? 178. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the States; What is the and whoever may have this right, it is to be protected. Owing v. rule as to Norwood's Lessee, 5 Cr. 348; People v. Gerke, 4 Am. L. R. 604; 195. 6 Opin. 291. But though a treaty is a law of the land, and its provisions must be regarded by the courts as equivalent to an act of the legislature when it operates directly on a subject, yet, if it be merely a stipulation for future legislation by Congress it addresses itself to the political and not to the judicial department, and the latter must await the action of the former. Foster v. Neilson, 2 Pet. 253. "Shall be confirmed," was construed to act presently on the perfect Spanish grants. Id. A treaty ratified with proper formalities, is, by the Constitution, the supreme law of the land, and the courts have no power to examine into the authority of the persons by whom it was entered into on behalf of the foreign nation. Doe v. Braden, 16 How. 635. Though a treaty is the law of the land, under the Constitution, Congress may repeal it, so far as it is municipal law, provided its subject-matter be within the legislative power. Taylor v. Morton, 2 Čurt. C. C. 454; Talbot v. Seaman, 1 Cr. 1; Ware v. Hylton, 3 Dall. 361; Story's Const. § 1838. A treaty concluded by the President and Senate binds the nation, What is the in the aggregate, and all its subordinate authorities, and its citizens obligation of a treaty? as individuals, to the observance of the stipulations contained in it. (Ware v. Hylton, 3 Dall. 199; Worcester v. Georgia, 6 Pet. 575.) Fellows v. Dennison, 23 N. Y. R. (9 Smith), 427. "SUPREME LAW OF THE LAND."-The highest law; that which What is the binds all the people of the nation, and cannot be abrogated by the supreme law? States. It was intended to declare that, to the extent of its pow- 2, 6, 233. ers, the Constitution, laws, and treaties of the United States, are prescribed by the "supreme power of the State," and are supreme. This power of the government can be exercised by Congress, or, to the extent of the treaty-making power, by the President and Senate. The national rule of action then is: 1. The Constitution; What is the 2. Acts of Congress; 3. Treaties; 4. The judicial decisions as national rule precedents. The State constitutions, laws, and decisions on, are subordinate to these. See Ableman v. Booth, 21 How. 525; Story's Const., § 1836-1841; Federalist, No. 33; Gibbons v. Ogden, 9 Wheat. 210, 211; McCulloch v. Maryland, 4 Wheat. 405, 406; Letter of Congress, 13th April, 1787; 12 Journal of Congress, 32-36; 1 Wirt's State Papers, 45, 47, 71, 81, 145; Sergt's Const. ch. 21, pp. 212, 219; ch. 34, pp. 406, 407; Ware v. Hylton, of action? How is a treaty to be regulated? 195. What was Jefferson's opini..n? 139, 154-161, 228. 3 Dall. 270-277; Journal of Convention, 222, 282, 283, 293; Federalist, Nos. 44, 64; Debates on the British Treaty of 1794; Journal of the H. of Reps., 6th April, 1796; Marshall's Life of Washington, ch. 8, pp. 650-659. Sergt's Const. 3d edition, ch. 34, p. 410; 1 Debates on British Treaty, by Bache (1796), pp. 374–386: 4 Elliot's Debates, 244-248. A treaty is to be regarded by courts of justice as equivalent to an act of the legislature whenever it operates itself without the aid of any legislative provision. Foster v. Neilson, 2 Pet. 314. See Jefferson's Opinion in Washington's Cabinet, that a treaty was a law of a superior order (Greek Treaty of 1790), and could not be repealed by a future one; and see a different view, 4 Jefferson's Corresp. 497, 498; Wheaton's Life of Pinckney, p. 517. 241. The Constitution or laws of any State to the contrary 203, 210, 211, notwithstanding. It matters not whether the action of a State is 218, 219, 226, organic, and in its Constitution, or any ordinance; or whether it be in a statute, if it violate the Constitution, laws, or treaty of the United States, it is simply void, and "the judges of every State" are bound by the supreme law, and not by the State law. Marbury v. Madison, 1 Cr. 137, 176; Calder v. Bull, 3 Dall. 386; Satterlee v. Matthewson, 2 Pet. 380, 413; Ex parte Garland, 4 Wall. 399; Cummings v. Missouri, 5 Wall. 277, 329. 142, 143. 239. Who shall 19, 35, 46, Any religious test required? What embraced? 229-231. 241-242. All courts will declare State Constitutions and laws, which clearly violate the Constitution, laws, or treaties of the United States, void. But only in clear cases. Id. See particularly Ableman v. Booth, 21 How. 507-526. [3.] The senators and representatives before mentioned, and the members o the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States. 242. "THE SENATORS," &c.-The classification embraces all the officers are legislative, executive, and judicial officers of the United States, and of the States. The practice has also been to embrace all the ministerial and militia officers of the country. The object doubtless was to procure solemn recognitions of the preceding clause. Story's Const. 1844-1846. Especial attention is invited to the fourteenth amendment. The disqualification for participation in rebellion seems to be based upon the higher obligation to observe this oath. 274-279. What was the oath ? The act of 1st June, 1789, prescribed the following oath :- No other oath is required, "yet he would be charged with insanity who would contend that the legislature might not superadd to the oath directed by the Constitution such other oath of office as its wisdom might suggest." (McCulloch v. Maryland, 4 Wheat. 416) The United States v. Rhodes (by Justice Swayne, in Kentucky, October T. 1867). 236. This is the last and closing clause of the Constitution, and in- 174, 182 serted when the whole framework of the government had been adopted by the convention. It binds the citizens and the States. And certainly no faith could be more deliberately and solemnly pledged than that which every State has pledged to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution. Ableman v. Booth, 21 How. 524, 525. The act of Congress of 2d July, 1862, 12 Stat. 502, § 1, requires What is the all federal officers to take the following oath :-"I, A. B., do test oath? solemnly swear (or affirm), that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or Constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God." The oath may be taken before any State officer authorized to 142, 143. administer oaths. If it be falsely taken, or if it be subsequently violated, it is perjury. The oath is required of all attorneys practicing in the federal courts, and before any of the departments of government, and of all captains of vessels. 2 Brightly's Dig. p. 348 and p. 50; 12 St. 610. It was held by Judge Busteed, of the United States District Court of Alabama, that, as to lawyers, this test oath was unconstitutional. The statute has been held to be unconstitutional as to attorneys How far of the Supreme Court of the United States who were such before unconstitutional? the rebellion, and who could not take the oath because of their participation in it. Garland's Case, 4 Wall. 381. oath? "NO RELIGIOUS TEST" was doubtless used in the sense of the What is a statute of 25 Charles II., which required an oath and declaration religious against transubstantiation, which all officers, civil and military, were formerly obliged to take within six months after their admission. See Webster's Dic., TEST. The object was to cut off all pretense of alliance between Church and State. Story's Const. § 184, 245. 235. |