"The articles specially designed to assert and carry out the supremacy of the National Government, as they came from the Committee, embodied the resolutions on the same subject which had passed the Convention. The only material addition consisted in the qualification that the legislative acts of the United States, which were to be the supreme law, were such as should be made in pursuance of the Constitution. Subsequently the article was so amended as to make the Constitution, the laws passed in pursuance of it, and the treaties of the United States the supreme law of the land, binding upon all judicial officers. "It is a remarkable circumstance that this provision was originally proposed by a very earnest advocate of the rights of the States-Luther Martin. His design, however, was to supply a substitute for a power over State legislation, which had been embraced in the Virginia plan, and which was to be exercised through a negative by the national legislature upon all laws of the States contravening, in their opinion, the Articles of Union or the treaties subsisting under the authority of the Union. The purpose of the substitute was to change a legislative into a judicial power, by transferring from the national legislature to the judiciary the right of determining whether a state law supposed to be in conflict with the Constitution, laws, or treaties of the Union should be inoperative or valid. By extending the obligation to regard the requirements of the national Constitution and laws to the judges of the state tribunals, their supremacy in all the judicatures of the country was secured. This obligation. vention with Great Britain, should, from the date of that instrument, and during its continuance, be of no force or effect; thus setting a precedent which may produce future difficulty in our national legislation, though the Judicial tribunals would probably regard such a law as a work of supererogation, or a mere nullity, and, from its retroactive operation, at variance with the spirit of the Constitution." (For citation see head of as stipulations in the treaty. This was enforced by the oath or affirmation to support the Constitution of the United States; and, as we shall see hereafter, lest this security should fail, the final determination of questions of this kind was drawn to the national judiciary, even when they might have originated in a state tribunal." § 265. Joseph Story, the commentator of the Constitution. Joseph Story was but nine years of age when the Constitution was finally ratified, but he had the double advantage of acquaintance with many of those who had participated in framing it, and of being called upon to construe it as one of the Justices of the Supreme Court of the United States at the very early age of thirty-two, being the youngest man who ever sat upon that bench.1 While the palin for Constitutional exposition must necessarily be given to the great Chief Justice, the centennial of whose appointment has this year been celebrated throughout the United States in a manner appropriate to the occasion, and to the memory of one of the greatest jurists and most distinguished statesmen of this, or any other country, we must not overlook the debt of gratitude we owe to Joseph Story, for many years Marshall's associate upon the Supreme Court of the United States, and who not only displayed great ability in his opinions, on constitutional and other ques $264. 1 Constitutional History of the United States from the Declaration of Independence to the close of the Civil War, by George Ticknor Curtis, in two volumes, 2d edition, New York, 1889, p. 554. $ 265. 'Joseph Story, born Sept. 18, 1779, appointed Associate Justice of the Supreme Court 1811, by President Madison, died Sept. 10, 1845. His decisions extend through thirty-five volumes of the Reports of the Supreme Court; many of them relate to constitutional construction, and several of them to the question under discussion. 2 John Marshall of Virginia was born September 24, 1755, he was appointed Chief Justice of the United States by President John Adams early in 1801. He assumed his place as Chief Justice on February 4, 1801, and occupied that position until his death, July 6, 1835. On February 4, 1901, centennial anniversary exercises were held under the auspices of the American Bar Association in Washington, D. C.; the New York State and New York City Bar associations jointly in Albany, N. Y., and under various local associations in many other cities of the United States, Chief Justice Fuller, Associate Justice Gray, John M. Dillon, Wayne McVeagh, Wm. Wirt Howe, W. Bourke Cochran and others delivering addresses at various places. tions of law, but who, on some occasions, forced the entire Court into uniting with him in expounding the limitations upon, and at the same time expanding the powers of, the Federal Government. § 266. Story's views on Article VI of the Constitution. -His "Commentaries" on the Constitution published in 1833, at once became, as they have ever since remained, a standard authority on the construction of the Constitution from legal and historical standpoints. In speaking of Article VI, he says: "The propriety of this clause would seem to result from the very nature of the Constitution. If it was to establish a national government that government ought, to the extent of its powers and rights, to be supreme. It would be a perfect solecism to affirm that a national government should exist with certain powers, and yet that in the exercise of those powers it should not be supreme. In regard to treaties, there is equal reason why they should be held, when made, to be the supreme law of the land. It is to be considered that treaties constitute solemn compacts of binding obligation among nations; and unless they are scrupulously obeyed and enforced, no foreign nation would consent to negotiate with us; or if it did, any want of strict fidelity on our part in the discharge of treaty obligations would be visited by reprisals or war. It is, therefore, indispensable that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. This will not prevent them from being canceled or abrogated by the nation upon grave and suitable occasions; for it will not be disputed that they are subject to the legislative power, and may be repealed, like other laws, at its pleasure, or they may be varied by new treaties. Still, while they do subsist they ought to have a positive binding efficacy as laws upon all the States and all § 266. 1 Commentaries on the Constitution of the United States, with a Preliminary Review of the Constitutional History of the Colonies and States before the adoption of the Constitution, by Joseph Story, LL. D., in two volumes, 5th edition, by Melville M. Bigelow, Ph. D., Boston, 1891, vol. II, § 18371840, pp. 603–607. 2 Citing the Federalist, No. 64. (See §§ 244-245, pp. 381 et seq. ante.) 8 See numerous cases cited in notes on p. 605, 2 Story's Com. the citizens of the States. The peace of the nation, and its good faith, and moral dignity indispensably require that all State laws should be subjected to their supremacy. . It is notorious that treaty stipulations (especially those of the treaty of peace of 1783) were grossly disregarded by the States under the confederation. They were deemed by the States not as laws, but like requisitions of mere moral obligation and dependent upon the good-will of the States for their execution. Congress, indeed, remonstrated upon this construction as unfounded in principle and justice. But their voice was not heard. "Power and right were separated; the argument was all on one side, but the power was on the other. It was probably to obviate this very difficulty that this clause was inserted in the Constitution; and it would redound to the immortal honor of its authors if it had done no more than to bring treaties within the sanctuary of Justice as laws of supreme obligation. . . . It is melancholy to reflect that conclusive as this view of the subject is in favor of the supremacy clause, it was assailed with great vehemence and zeal by the adversaries of the Constitution. The very circumstance that an objection was made demonstrated the utility, nay, the necessity of the clause, since it removed every pretence under which ingenuity could, by its miserable subterfuges, escape from the controlling power of the Constitution. "To be fully sensible of the value of the whole clause, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. . . . The new Congress would have been reduced to the same impotent condition with their predecesAs the Constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others." 5 sors. 4 The italics are the author's. embraces commercial regulations; 5 Justice Story follows this with this subject will be referred to in the next chapter. a discussion of the question as to how far the treaty-making power $267. Judge Cooley's "Constitutional Limitations; " 1873.-Forty years after Justice Story's Commentaries had appeared, Mr. Justice Cooley of Michigan issued the first edition of his "Treatise on Constitutional Limitations," which has since then run through numerous editions, and holds high rank as an authority, especially as to the constitutional limitations resting upon the legislative powers reserved to the States. He, also, recognized the absolute necessity of empowering the Central Government of the United States to make treaties in such manner that there could be no collision/ between State and National authorities, as would certainly be the result if the adjustment of international matters were regulated by legislation in over forty-five different States. Nothing more hopeless can be imagined than the prospect of uniformity in such cases; he gives to treaties the highest authority allowed by almost any writer on the subject, either in text-books, or in decisions, and in the following paragraph, after quoting Article VI, at length, he shows how essential this power is to the protection of the National jurisdiction: "It is essential to the protection of the national jurisdiction, and to prevent collision between State and national authority, that the final decision upon all questions arising in regard thereto should rest with the courts of the Union; and as such questions must frequently arise first in the State courts, provision is made by the Judiciary Act for removing to the Supreme Court of the United States the final judgment or decree in any suit, rendered in the highest court of law or equity of a State in which a decision could be had, in which is drawn in question the validity of a treaty, or statute of, or authority exercised under the United States, and the decision is against its validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity; or where any title, right, privilege, or immunity is claimed under the Constitution or any treaty or statute of or commission held or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set |