to the Framers' convention. At the first sight, therefore, Rutgers v. Waddington must have seemed a great discouragement to all members of both bodies who desired that state judges should be bound to hold state legislation to be void in so far as contrary to federal law under the old confederation or the new constitution. Further examination, however, must have shown anxious inquirers in 1787 that the decision in Rutgers v. Waddington suggested an excellent and a technical means of escape from such difficulties. The New York court had refused to presume that the legislature had intended to derogate to the law of nations and had decided that the statute did not derogate thereto. In doing this, it laid the greatest stress on the fact that the statute did not contain any nonobstante clause derogating to the law of nations. Had it done so, the whole case would, the court thought, have been an altogether different one. The will of the legislature would then have clearly bound the court to make a contrary decision. The court would have been compelled to interpret the treaty according to the will of the legislature and contrary to the law of nations.

The observations of the New York court upon the legal institution of the nonobstante clause, have been previously quoted. They show clearly that the repeal of things contrary, which is made by a nonobstante clause, is an express one, and that no court can use construction or interpretation to disregard it. It was the absence of an express repeal by such a nonobstante clause or otherwise, which enabled the court to say that no repeal existed, because it had no right to imply one.

The observations of the court upon the nonobstante clause contain nothing new as general principles of law and are expressly stated to be based upon authority. The application of the doctrine to the new state of things before the court is another matter and one furnishing much new food for thought.

The absence of a derogation made by a nonobstante clause enabled the court to interpret the statute to be in harmony with the law of nations and the treaty. The presence of

such a clause would have compelled the court to interpret the statute to be in contrariety with the law of nations and the treaty. Thus in every case of conflict between laws of different kinds, a nonobstante clause, enacted by competent lawgivers, must govern judicial action, whether such exercise of legislative power be good or be evil. Had the state legislature used the nonobstante clause against the treaty, it would have been an evil use thereof. But why should not such a clause be well used in such a case, that is to say, used in favour of federal right when state statutes were federally wrongful? This, it is suggested, was a natural question to anxious inquirers in 1787, who were seeking solution for the problem of conflicts between federal and state laws. Certain it is that both the federal Congress and the constitutional convention actually proposed the use of nonobstante clauses for such purposes, as will be hereinafter particularly rehearsed. As the Congress was the first so to do, it is evident that it set the example to the convention. But who suggested the idea to Congress, that is to say, the idea of a new American application of an old English and European institution? In the writer's opinion, Rutgers v. Waddington is a very probable and the most probable source from which such a suggestion could have been taken. If this be so, the opinion in that case is an important historical monument in the constitutional law of the Union. It clearly defined the extreme of possible mischief in conflicts between the laws of the Union and those of the states and it led the way to the discovery of that remedy which the Framers, following the Congress, thought the best solution of the difficulty.

CHAPTER XXVIII.

Conclusions of the Historical Commentary.

The following propositions are contended to be correct statements of results ascertained and supported by the foregoing Historical Commentary on foreign and American laws.

I. It accords with the principles of law and with legal reasoning that a constitution should be of such a nature, that the judiciary thereunder should be incompetent to decide a questioned law to be unconstitutional or impeachable and hold it therefore void. This can be so when the constitution is either unwritten or written. Such an unwritten constitution was that of Great Britain in 1776 and long before. Such written constitutions are those now existing in nearly every German state. The various written constitutions which have existed in France, since the revolution of 1789, also afford examples of the truth of this proposition. So too did the written constitution of New York existing in 1784, if the opinion of Rutgers v. Waddington, dated in that year, was correct. Rutgers v. Waddington is older than the U. S. constitution, but the other cases referred to under written constitutions are junior thereto.

II. Nevertheless, it equally accords with the principles of law and with legal reasoning that a written or unwritten constitution should be of such a nature that the judiciary thereunder should be competent to decide a questioned law to be contrary to the constitution or to binding right of

superior strength to the legislative power exercised, and, when it had so decided, to hold the same to be therefore void. Such can be the law when the constitution is either written or unwritten. Before the U. S. constitution was framed there were unwritten and written constitutions under which it might be a judicial and not an extrajudicial question whether challenged legislation was accordant or contrariant to constitutional or other binding right, and whether legislators had or had not proceeded secundum jus potestatis suae in enacting it. For unwritten European constitutions, this is shown by the cases adduced from the older French law, the older English law, the English law of the prerogative abroad, the Roman law of rescripts, and above all the Canon law. For an American unwritten constitution this is shown by the great case of Trevett v. Weeden in Rhode Island in 1786. For a written constitution the truth of the proposition is shown by the case of Bayard v. Singleton, in North Carolina in 1787, in which one of the counsel for the party challenging the law, was a Framer of the constitution. All the said cases are older than the constitution of the United States.

On the whole matter, therefore, the Framers of the constitution were at liberty to do what they deemed wisest and best in regard to the judicial competency in question, without danger of violating the principles of law or those of either civil or politic prudence. The judiciaries established or affected by the new constitution might be either enabled to exercise, or disabled from exercising, such a competency, without danger of a leap in the dark. Either course might be taken without being unprecedented.

The question, whether this judicial competency was ever heard of before it was established in America, has now been answered.

The next part of this Essay will discuss the question whether the Framers intended that the said judicial competency should belong to the federal judiciary established by the new constitution, or to the state judiciaries affected by it.

PART III.

OF THE HISTORICAL ANTECEDENTS OF THE CONSTITUTIONAL

TEXTS CONCERNED.

Part III. of the Historical Commentary will investigate the origin of the texts of the constitution, that are concerned and will discuss their historical relation to antecedent texts which existed under the confederation.

CHAPTER XXIX.

Of the historical antecedents of paragraph 2.VI. of the constitution.

No. 1. Of the text of paragraph 2. VI.

No. 2. Of the treaty of peace with Great Britain.

No 3. Of certain acts of the federal Congress concerning the treaty of peace and their historical relation to paragraph 2. VI.

No. 4. Of the relation of the judiciaries of the states to the treaty of peace, according to the federal letter of Congress dated April 13th, 1787.

No. 5. Of the resolutions of the federal Congress passed March 21st, 1787, and recited in the federal letter of April 13th.

No. 6. Of the scope of legislation concerning the treaty of peace then recommended to the states by Congress.

No. 7. Of state statutes posterior to the confederation and conflicting with federal treaties.