laws and to hold them void, when unconstitutional, should be a right belonging to the courts of the several states.

It should perhaps here be more fully stated why this second proposition as to the Framers' intention has been discussed before the first in the series laid down in chapter 31, No. 1.

In a critical commentary upon the text of the constitution, the second proposition should be considered after the first, for it relates to a right which is a limitation upon an obligation contained in the first. But in an explanatory view of the intentions of the Framers as to the new constitution, which involves the relation thereof to the old confederation, it has naturally and unavoidably come first into consideration. As will be seen from the foregoing, the present right of a state court to decide whether or not a U. S. law has been made in pursuance of the constitution, is historically inseparable from the previously existing right of the same court to decide whether or not a federal act was made in pursuance of the confederation. This previously existing right had to be fully considered by the convention in framing article VII. of the constitution, which related to the ratification thereof by the conventions of the states. In so doing, what they thought and intended concerning the present right aforesaid became manifest.

CHAPTER XXXIII.

Further consideration of the Intentions of the Framers concerning the state courts. That they intended that the state courts should be competent and obliged to decide upon the questioned federal constitutionality of state legislation and to hold the same void in so far as so nconstitutional.

No. 1. Of conflicts between the laws of the Union and

those of the states and the relation thereof to the framing of the new constitution.

No. 2. How the plans for a new union, which were presented to the convention, were affected by conflicts of the laws of the states with the confederation and federal treaties.

No. 3. Of the two principal plans of union, which were presented in the convention.

No. 4. Of the two methods proposed in the convention for settling conflicts between the laws of the Union and those of the states.

No. 5. Of the legislative method for settling conflicts between the laws of the Union and those of the states.

No. 6. Of the judicial method for settling conflicts between the laws of the Union and those of the states.

No. 7. Of the intentions of the Framers in rejecting the legislative method and adopting the judicial method.

No. 8. History of the proceedings of the convention in framing the text concerning the judicial method for settling conflicts between the laws of the Union and those of the states.

No. 9. Of the meaning of the words "law of the land" in the constitution, according to the intentions both of the committee and the convention.

No. 10. Conclusion as to the correctness of the first proposition concerning the Framers' intentions laid down in chapter 31, No. 1.

No. 11. Of the connection between the first and second propositions concerning the Framers' intentions laid down in chapter 31, No. 1.

No. 1.

Of conflicts between the laws of the Union and those of the states and the relation thereof to the framing of the new constitution.

The intentions of the Framers will now be considered in regard to the matter stated in the first proposition laid down in chapter 31, No. 1, namely, that the Framers actually intended that the courts of the several states should become competent and obliged in all litigations before them, to decide upon the questioned (federal) constitutionality of state laws and state constitutions, and to hold the same to be void in so far as contrary to the constitution and constitutional laws and treaties of the United States.

The Framers were agreed upon the prime necessity of finding a proper method of settling conflicts between the laws of the Union and those of the states, and well they might be. Such conflicts of laws in a union of states are not mere antinomies, such as may occur in the municipal law of every state anywhere, and which a great jurist teaches may be settled by purely scientific authority * The resemblance is rather to the former conflicts between the laws of the state and those of the church which in Europe shook society to its foundations.

No. 2.

How the plans for a new union, which were presented to the convention, were affected by conflicts of the laws of the states with the confederation and federal treaties.

Conflicts of the laws of the states with the confederation and federal treaties were among the weightiest causes producing the meeting of the Framers' convention. Every plan of union introduced to their consideration showed this truth. The most important of those plans were the two * Puchta: Cursus der Institutionen, Ed. 6, I. 44.

moved respectively by Randolph on behalf of Virginia and by Patterson on behalf of New Jersey. Both these plans will be so frequently referred to in this discussion that some observations upon them are now requisite.

No. 3

Of the two principal plans of union, which were presented in the convention.

Randolph's plan was one for Articles of Union, which would supersede the Articles of Confederation, and was regarded as being preferred by the large states. Patterson's was for new articles in alteration of, and addition to, the old confederation, and was regarded as preferred by the small states.

The resolutions of Randolph's plan were the starting point of the proceedings and debates of the convention. They had been carefully prepared in advance, and were in fact the only matured proposal ready for discussion. They were brought in by Randolph as the representative of the delegation from Virginia, among whom was Washington. To a large extent, the propositions of Randolph's plan were accepted and elaborated, sometimes with, and sometimes without, adaptation to dispositions derived from other sources. In some very important respects its propositions were, however, not accepted, and the constitution is very different from what it would have been, had the whole plan been followed. On the other hand, Patterson's plan was rejected as a whole. Subsequently to that rejection, however, part of it was taken as a basis for framing texts of the constitution, which adjusted fundamental relations between the Union and the states. The constitution is a very different instrument from what it would have been, had it contained nothing in common with Patterson's plan.

No. 4.

Of the two methods proposed in the convention for set tling conflicts between the laws of the Union and those of the states in the new constitution.

The Framers were divided in their preferences for two very different ideas concerning the settling of conflicts between the laws of the Union and those of the states. One of these ideas was that of vesting in the legislative Congress of the Union a negative power over state laws in certain cases. This idea was brought before the convention as a fundamental part in Randolph's plan. This legislative negative power required a federal legislative discrimination as to particular state laws.

The other leading idea was one requiring judicial discrimination in particular cases of conflict, in which a general rule of legislation, written in the constitution, would receive specific application. The origin of this idea is to be traced to the previously mentioned draft of identical laws which the federal letter of Congress, dated April 10th, 1787, recommended to the legislatures of the several states as the means of settling conflicts between state laws and the treaty of peace. This idea was preferred by the Framers and was expanded in two ways. It was applied not merely to treaties but also to the new constitution and to the laws made in pursuance thereof. It was not only made a rule addressed to the judges in every state, but was laid down in paragraph 2. VI. in such distinct legislative terms as to bind all persons, public and private, capable of being bound by legis lative dispositions in the constitution.

No. 5.

Of the legislative method for settling conflicts between the laws of the Union and those of the states.

The idea of the legislative negative was the one first brought to the consideration of the convention. It was