"private licentiousness." (Federalist, Dawson's edition, pp. 105, 106.)

It is clear from the foregoing italicised passage that the writer understood that the words, "law of the land," in paragraph 2. VI. would, if the constitution became established, import that each state had a law of the land of its own; that part of it emanated from the Union, and the remainder from the state itself; and that the judges of the state were the ministers of all parts of this law of the land of the state. One part of the said law consisted of "na"tional regulations" and the other of "local regulations." By local regulations were meant the constitution and laws of the state, written and unwritten, and by national regulations, the constitution and constitutional laws and treaties of the United States. The words "the supreme law of the "land" must have been understood by Hamilton and consequently by the other members of the committee to mean the supreme law of the land of each state, or of every state severally, and not the supreme law of one single land of the United States merged together.

It remains to speak of the ideas of the convention upon the subject. Although no remarks upon the words "law "of the land" were made by any of the Framers of the convention, C. C. Pinckney, one of their number, made important observations thereupon in another place, which have been previously quoted in this Essay.* These were addressed to the legislature of South Carolina, where he, as a member of the late convention, was expressly and publicly giving his constituents an account of his stewardship. By referring to the extracts hereinbefore given, it will be seen that the judicial cases cited by Pinckney show clearly that the treaty of peace was superadded to and became part of the law of the land of South Carolina (and consequently in the other states was superadded to and made part of the law of the land of each respectively). He affirmed in express terms that paragraph 2. VI. was declaratory and that the treaties were the law of the land as much * See pages 289, 290, ante.

under the confederation as under the constitution. This he said after Bayard v. Singleton, in a neighbouring state, had proved that the confederation itself was part of the law of the land of North Carolina, as must again be repeated.

Pinckney's remarks demonstrate that a competent and prominent member of the Framers' convention had no idea that any departure from the original intentions of the latter body had been made by it, when it accepted the aforesaid change of language made by their committee, that is to say, the change from the words, "the supreme law of the sev"eral states and of their citizens and inhabitants," to the words, "the supreme law of the land." His remarks do more. They are so expressed that there can be no doubt that C. C. Pinckney's opinion was not a mere personal opinion, but a representative one. They thus furnish positiye evidence as to the character of the opinions of the Framers in general upon the committee's action.

The foregoing examination, it is maintained, shows that the committee of five on the revised draft no more departed from the previously expressed intentions of the Framers in the first, than in the other two modifications of language, introduced by them into the text of what is now paragraph 2. VI. of the constitution.

No. 10.

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

It is also maintained that the foregoing history of the framing of the said constitutional text establishes the truth of the proposition 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: that is to say, that it is correct to affirm proposition 1st on page 294.

No. 11.

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

It has been previously shown that the Framers intended that the right to decide upon the questioned constitutionality of U. S. laws and to hold them to be void, when unconstitutional, should be a right belonging to the courts of the several states in all litigations before them. It is here proper to add that such a right of the state judges is necessarily, and must have been intended to be, a limitation upon the obligation imposed upon them in cases of conflicts between the constitutions or laws of their states and the laws of the United States. The skillful incorporation of such a limitation in the express terms of the obligation liberates them from the rule of paragraph 2. VI., whenever U. S. laws are not made in pursuance of the U. S. constitution. Such laws are outside of the limits of the rule.

CHAPTER XXXIV.

Of the Framers' intentions as to the competency of the U. S. Supreme Court to decide upon the questioned (federal) constitutionality of state legislation and to hold the same void in so far as so unconstitutional.

No. 1. Of the inferior courts of the United States.

No. 2. That paragraph 2. VI. was intended to be a legislative rule of judicial decision for all courts, both of the United States and of the several states.

No. 3. Of the proposed and rejected legislative power of negativing state legislation, as showing the Framers' intentions concerning the relation of federal authority to conflicts between the laws of the Union and those of the states.

No. 4. Of the origin and purposes of the legislative negative method.

No. 5. Of the relation of paragraph 2. VI. to the beginning of section 2. III.

No. 6. The history of the legislative negative in the convention examined, in order to ascertain the intentions of the Framers concerning judicial competency in cases of conflict between the laws of the Union and those of the state.

The 3d proposition laid down in Chapter 31, No. 3, will now be considered, viz., that the Framers of the constitution actually intended that the U. S. Supreme Court should be competent in all litigations before it 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 U. S. constitution.

No. 1.

Of the inferior courts of the United States.

Although the convention did not frame any constitutional clause ordaining any inferior courts of the United States, it did frame texts giving Congress power to constitute such inferior tribunals in the future. Whether such courts, when so constituted, were intended to have the same competency, is therefore here a proper question to ask. To that question an affirmative answer is given, for, it is maintained that they actually intended that all courts, past present and future, both state and federal, should be so competent.

No. 2.

That paragraph 2. VI. was intended to be a legislative rule of judicial decision for all courts, both of the United States and of the several states.

If what has been previously said be correct, it has been made clear that the Framers intended that the courts of the several states should be both competent and obliged to do what, it is now furthermore asserted, they intended all courts of the United States to be competent to do. This was done by paragraph 2. VI. That paragraph was four times considered in the convention without one negative vote being given against it. It was regarded as, and intended to be, a legislative disposition. As will be hereinafter fully commented upon, the final clause is a clausula nonobstante, that is to say, a legislative clause of the most express and technical nature. While this clause derogates to old and other laws of a certain sort, clauses preceding it enact new law of a different sort. Paragraph 2. VI. is therefore a legislative rule and limitation, which is particularly and especially addressed to "the judges in "every state." It is thus a legislative rule of decision for those judges, but being a legislative rule, it is one for all other courts capable of applying it and all other persons capable of obeying it As a legislative rule of judicial decision, it can be applied by the U. S. judges. The fact that the Framers regarded the rule in paragraph 2. VI. as legislation or written law is alone sufficient to prove that they actually intended that the rule of decision therein contained should bind the supreme and all future courts of the United States as well as all the courts of all other states.

Strictly speaking, it is therefore unnecessary to proceed further in investigating the intentions of the Framers as to proposition 3d. It would, however, be doing great injustice to the matter to stop here. It is, indeed, part of a greater matter.