upon the nation; and that a refusal of the house of representatives to carry it into effect was breaking the treaty, and violating the faith of the nation. On the other hand, it was contended, that the power to make treaties, if applicable to every object, conflicted with powers, which were vested exclusively in congress; that either the treaty making power must be limited in its operation, so as not to touch objects committed by the constitution to congress; or the assent and co-operation of the house of representatives must be required to give validity to any compact, so far as it might comprehend these objects: that congress was invested with the exclusive power to regulate commerce; that therefore, a treaty of commerce required the assent and co-operation of the house of representatives; that in every case, where a treaty required an appropriation of money, or an act of congress to carry it into effect, it was not in this respect obligatory, till congress had agreed to carry it into effect; and, that they were at free liberty to make, or withhold such appropriation, or act, without being chargeable with violating the treaty, or breaking the faith of the nation. In the result, the house of representatives adopted a resolution declaring, that the house of representatives do not claim any agency in making treaties; but when a treaty stipulates regulations on any of the subjects submitted to the power of congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by congress; and that it is the constitutional right and duty of the house of representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon, as in their judgment may be most condu

cive to the public good. It is well known, that the president and the senate, on that occasion, adopted a different doctrine, maintaining, that a treaty once ratified became the law of the land, and congress were constitutionally bound to carry it into effect. At the distance of twenty years, the same question was again presented for the consideration of both houses, upon a bill to carry into effect a clause in the treaty of 1815 with Great Britain, abolishing discriminating duties; and, upon that occasion, it was most ably debated. The result was, that a declaratory clause was adopted, instead of a mere enacting clause, so

1 See Journal of House of Representatives, 6th April, 1796; 5 Marshall's Life of Washington, ch. 8, p. 650 to 659; Serg. on Const. ch. 33, p. 401, (2d edit. ch. 34, p. 410, 411); 1 Debates on British Treaty, by F. Bache, 1796, p. 374 to 386; 4 Elliot's Deb. 244 to 248. -President Washington, on this occasion, refused to deliver the papers respecting the British Treaty of 1794, called for by the house of representatives; and asserted the obligatory force of the treaty upon congress in the most emphatic terms. He added, that he knew, that this was understood in the convention to be the intended interpretation, and he referred to the Journal of the Convention* to show, that a proposition was made," that no treaty should be binding on the United States, which was not ratified by a law;" and that it was explicitly rejected. (5 Marshall's Life of Washington, ch. 8, p. 654 to 658.) At a much earlier period, viz. in 1790, the same point came before the cabinet of President Washington in a treaty proposed with the Creek Indians. Upon that occasion, there seems to have been no doubt in the minds of any of his cabinet of the conclusiveness of a treaty containing commercial stipulations. Mr. Jefferson, on that occasion, firmly maintained it. A treaty, (said he,) made by the president with the concurrence of two thirds of the senate is the law of the land, and a law of a superior order, because it not only repeals past laws, but cannot itself be repealed by future The treaty then will legally control the duty act, and the act for securing traders in this particular instance. Yet Mr. Jefferson afterwards, (in Nov. 1793,) seems to have fluctuated in opinion, and to have been unsettled, as to the nature and extent of the treaty-making power. 4 Jefferson's Corresp. 497, 498.

ones.

*See Journal of Convention, p. 284, 325, 326, 339, 342, 343.

that the binding obligation of treaties was affirmatively settled.1

§ 1836. From this supremacy of the constitution and laws and treaties of the United States, within their constitutional scope, arises the duty of courts of justice to declare any unconstitutional law passed by congress or by a state legislature void. So, in like manner, the same duty arises, whenever any other department of the national or state governments exceeds its constitutional functions. But the judiciary of the United States has no general jurisdiction to declare acts of the several states void, unless they are repugnant to the constitution of the United States, notwithstanding they are repugnant to the state constitution. Such a power belongs to it only, when it sits to administer the local law of a state, and acts exactly, as a state tribunal is bound to act.1 But upon this subject it seems unnecessary to dwell, since the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy.5

1 Serg. on Const. ch. 33, p. 402, (2d edit. ch. 34, p. 411; 2 Elliot's Deb. 273 to 279.-Upon this occasion, a most admirable speech was delivered by the late William Pinkney, in which his great powers of reasoning and juridical learning had an ample scope. See Wheaton's Life of Pinkney, p. 517.

2 Marbury v. Madison, 1 Cranch, 137, 176.

3 Calder v.

Bull, 3 Dall. R. 386; S. C. 1 Peters's Cond. R. 172, 177. 4 Satterlee v. Matthewson, 2 Peters's Sup. R. 380, 413.

5 See Serg. on Const. ch. 33, p. 391, (2d edit. ch. 34, p. 401); 1 Kent's Comm. Lect. 20, p. 420, 421, (2d edit. p. 448, 449, 450.)

CHAPTER XLIII.

OATHS OF OFFICE RELIGIOUS TEST- -RATIFICATION OF CONSTITUTION.

§ 1837. The next clause is, "The senators and "representatives before mentioned, and the members "of 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 the constitution.1 But no "religious test shall ever be required as a qualifica"tion to any office or public trust under the United "States."

§ 1838. That all those, who are entrusted with the execution of the powers of the national government, should be bound by some solemn obligation to the due execution of the trusts reposed in them, and to support the constitution, would seem to be a proposition too clear to render any reasoning necessary in support of it. It results from the plain right of society to require some guaranty from every officer, that he will be conscientious in the discharge of his duty. Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those, who feel a deep sense of accountability to a Supreme being. If, in the ordinary administration of justice in cases of

1 This clause, requiring an oath of the state and national functionaries to support the constitution, was at first carried by a vote of six states against five; but it was afterwards unanimously approved. Journ. of Convention, p. 114, 197. On the final vote, it was adopted by a vote of eight states against one, two being divided. Id. 313. The clause respecting a religious test was unanimously adopted. Id. 313.

private rights, or personal claims, oaths are required of those, who try, as well as of those, who give testimony, to guard against malice, falsehood, and evasion, surely like guards ought to be interposed in the administration of high public trusts, and especially in such, as may concern the welfare and safety of the whole community. But there are known denominations of men, who are conscientiously scrupulous of taking oaths (among which is that pure and distinguished sect of Christians, commonly called Friends, or Quakers,) and therefore, to prevent any unjustifiable exclusion from office, the constitution has permitted a solemn affirmation to be made instead of an oath, and as its equivalent.

§ 1839. But it may not appear to all persons quite so clear, why the officers of the state governments should be equally bound to take a like oath, or affirmation; and it has been even suggested, that there is no more reason to require that, than to require, that all of the United States officers should take an oath or affirmation to support the state constitutions. A moment's reflection will show sufficient reasons for the requisition of it in the one case, and the omission of it in the other. The members and officers of the national government have no agency in carrying into effect the state constitutions. The members and officers of the state governments have an essential agency in giving effect to the national constitution. The election of the president and the senate will depend, in all cases, upon the legislatures of the several states; and, in many cases, the election of the house of representatives may be affected by their agency. The judges of the state courts will frequently be called upon to decide upon the constitution, and laws, and