"several states," and not the supreme law of the United States. In using the words, "the law of the land," the first resolution and the letter of Congress must have been understood by the states addressed as meaning the law of the land of each several state respectively. The Congress of the confederation, indeed, could not possibly have meant anything else in federally addressing the states individually. There was the highest authority for the fact that each state had a law of the land of its own. In each of eight states, the written constitution expressly mentioned the law of the land of the state, and in a ninth state the laws of the land thereof. In the two states with unwritten constitutions, it was certain that there was a law of the land of each respectively, as shown by the case of Trevett v. Weeden. It is a rightful presumption that that great case suggested, as it certainly supported, the peculiar form of action chosen by Congress, because it was then the only reported case recognizing that a fundamental part of the law of the land of a state was a matter of positive right superior to any enactments of the legislature of the state. The trial by jury was judicially recognized in Trevett v. Weeden to be such a fundamental part of the law of the land of Rhode Island, and so too, claimed Congress, were all treaties. What was true of one state was true of all. If true of a state like Rhode Island with an unwritten constitution, it was a fortiori true of those in which written constitutions existed. There was, indeed, very soon after a case which could be quoted as authority for the states with written constitutions. This was Bayard v. Singleton. It was not early enough to anticipate the action of Congress, but early enough for a prompt confirmation of that action. It was also early enough to anticipate the action of the legislature of North Carolina, which in December of the same year passed "an "act declaring the treaty of peace between the United States "of America and the King of Great Britain to be part "of the law of the land."* As has been previously rehearsed, in that important case, in the May term following * American State Papers, Foreign Affairs, I. 230. the April letter of Congress, the Supreme Court of North Carolina rendered a decision holding that a certain act of the legislature was repugnant to the constitution of the state and that it therefore must be held void; that the written constitution of the state was fundamental law of the land of North Carolina; that the confederation was part of the fundamental law of the land of the state; and that the confederation, like the state constitution, could not be repealed by the state legislature.* That the confederation was part of the law of the land of a state and unrepealable by the legislature thereof, are points of the decision, that are important links in the chain of authorities, preceding the constitution, which support and confirm the position of the federal Congress upon federal treaties. That the treaty of peace was superadded to, and became part of, the law of the land of each several state is shown by the following cases which were prior in date to the federal letter of Congress and were mentioned in the public debates upon the new constitution in the lower house of the legislature in South Carolina. On January 16th, 1788, Gen. C. C. Pinckney said, in speaking of the legal vigour of the treaty of peace in South Carolina: "The treaty had "been enrolled in the prothonotary's office by the express "order of the judges. It had been adjudged, in a variety "of cases, to be part of the law of the land, and had been "admitted to be so, whenever it was pleaded. If this had "not been the case, and every individual state had pos"sessed the right to disregard a treaty made by Congress, "no nation would have entered into a treaty with us." Later in the same debate, Pinckney "rose to mention some "instances he had omitted of the treaty with Great Britain "being considered in our courts as part of the law of "the land. The judge who held the court at Ninety-six discharged upwards of one hundred recognizances of per"sons committed for different crimes, which fell within the meaning of the treaty. A man named Love, accused of *See ante Chapter 26. 66 66 murder, was liberated. It is true, the people, enraged at "the enormity of his conduct, hanged him soon after; but "of this the judicial power knew nothing until after its "perpetration. Another murderer was allowed to plead the "treaty of peace in bar, that had conducted General Pick"en's brother into the hands of the Indians, who soon "after put him to death." On the next day C. C. Pinckney remarked, "I contend that the article in the new con"stitution, which says that treaties shall be paramount to "the laws of the land, is only declaratory of what treaties "were, in fact, under the old compact. They were as much the law of the land under that confederation, as they are "under this constitution."* The foregoing, it is contended, establishes the correctness of the propositions (1), that when the Congress of 1787 sat and the convention of 1787 met, the law of the land meant the law of each several state, and not the law of the United States, and (2), that the treaty of peace was superadded to, and made part of, the law of the land of each several state. No. 12. Of the origin of the pursuance clause of paragraph 2. VI. The origin of the pursuance clause of paragraph 2. VIremains to be traced. be done elsewhere. In order to avoid repetition, this will sidered in Part IV. of the Historical Commentary and will be reconsidered in the Textual Commentary. * 4 Elliot's Debates, 266, 270, 278 CHAPTER XXX. Of the federal text which is the historical antecedent of the beginning of section 2. III. of the constitution. So much for the relation which the draft of identical laws, federal letter and the resolutions of Congress bear to paragraph 2. VI. of the constitution. It is next necessary to point out the relation which the same documents bear to another text of the constitution, viz., the beginning of section 2. III. The beginning of section 2. III. provides, inter alia, that "the judicial power shall extend to all cases in law and equity arising under. . treaties made, or which shall "be made, under their authority." 66 Except as to the word "under," the origin of this provision must be intimately related to the following part of the text of the draft of identical laws, viz., that which proposed that "the courts of law and equity in all causes and "questions cognizable by them respectively, and arising "from or touching the said treaty, shall decide and adjudge "according to the true intent and meaning of the same." * The causes and questions cognizable by courts of law and equity and arising from a treaty, which are found in this draft recommended to the state legislatures, are evidently precursors of the cases in law and equity arising under treaties, which are found in the constitution, except as to * Journals of Congress, vol. 12, page 35. the use of the word "under" instead of the word "from" after the word "arising." The idea upon which both the antecedent and the subse quent texts are framed is evidently the same. It is the idea that judicial courts, in questions and cases of law and equity, arising before them from or under a treaty, should have the power and obligation of deciding and adjudicating according to the treaty as lex juris. The above part of the draft of identical laws and the treaties portion of section 2. III. have thus directly this relation to each other: the former is the historical antecedent of the latter purely and simply. Now the whole of the beginning o section 2. VI. is framed upon one and the same system. Of that system the treaties portion is the key, the idea upon which it is framed being extended to the other portions, which are concerned with the constitution and the laws. Those other portions have, therefore, in a qualified sense, the same historical antecedent as the treaties portion. Consequently, in either an absolute or a qualified sense, all portions of the beginning of section 2. III. have an historical antecedent in the same text of the federal draft of identical laws for the several states. From this and the preceding chapter it appears that paragraph 2. VI. and the beginning of section 2. III. have a common origin. This fact is of much importance in any commentary upon the constitution. It is especially important in this Essay, which makes the following contentions concerning those constitutional texts: (1) In Part IV. of the Historical Commentary it is contended that the evidence makes it clear that the two texts were closely connected in the framing thereof and that the Framers intentionally framed them so as to be adapted to each other. (2) In the Textual Commentary, it is contended that, independently of the extratextual evidence, the two texts can be shown to be so intimately related that they are twin |