state oy treaties, the nonobstante or notwithstanding clause, are thus all to be found in both the draft of identical laws recommended by Congress to the states in April, 1787, and in the constitution framed during the following summer and submitted to the same states in following September.

Such resemblances and repetitions can not have been accidental. There were too many members of the convention who were members of Congress at the dates and times concerned, for the action of the two bodies not to be related. Madison was a most assiduous member of both assemblies, and has preserved for posterity both the debates of the Congress on the treaty question and the debates of the Convention on the whole constitution. Gorham, another delegate in that Congress, was not only a Framer, but also a member of the first committee of five which reported the original draft of the constitution. All of the members of the second committee of five, which reported the revised draft, except G. Morris, represented their states in that Congress, viz., Johnson the chairman, Hamilton, and King, besides Madison. The binding of state judges by treaties, and the nonobstante clause derogatory to state acts, were things written in the amended draft of constitution that was referred to the second committee of five. The words "law of the land" were not found therein, but were inserted by that committee in their revised draft. Instead of the previously existing words, "shall be the supreme law "of the several states and of their citizens and inhabitants, they substituted what is now the present text, "shall be "the supreme law of the land." As four members of the committee had been members of the Congress which had so applied the words "law of the land" to a treaty, it is easy to answer the question, where did the idea of their alteration come from.

The federal letter of April 13th and resolutions of March 21st, 1787, are of such importance in the history of the constitutional text, that the writer feels it requisite to insert them in extenso in Appendix No. 7 to his Essay.

Critical objections to the exposition of federal right made by the letter of Congress will be found in Judge Iredell's

dissenting opinion in Ware v. Hylton, page 276 and end of page 279 of 3 Dallas.

See G. Dufour's Droit Administratif Appliqué (Paris, 1868), I. 5-9, for a view of the law of treaties, which is of interest in the present connection.

No. 9.

Of the origin of the doctrine that a treaty may be part of the law of the land of a state.

Other questions equally interesting may now be asked. Where did the idea come from, that a treaty is to be regarded as part of the law of the land? Upon what authority was this declared to the legislature of each state by the federal Congress?

Before answering these questions, it should be observed that the precise words of the draft of identical laws of April 13th and third resolution of March 21st are "part of "the law of the land." The word "part" in this phrase is the clue.

The lawyers and statesmen of 1787 were assiduous students of Blackstone. Those of Blackstone's present readers, who have collated his Commentaries with texts of the constitution and related documents, will have no difficulty in recognizing the passage upon which the draft for identical laws was modelled. The letter of Congress distinctly makes the law of nations and the faith of treaties parts of one subject; and Blackstone, IV. ch. 5, p. 67, thus speaks of the position of the law of nations in England:

"In arbitrary states this law (i. e. the law of nations), "whenever it contradicts or is not provided for by the mu"nicipal law of the country, is enforced by the royal power: "but since in England no royal power can introduce a new "law, or suspend the execution of the old, therefore the law "of nations (whenever any question arises which is properly "the object of its jurisdiction) is here adopted in its full "extent by the common law and is held to be a part of "the law of the land."

Thus in every state having the Common law, the law of nations is an adopted law and held to be part of the law of the land.

According to the letter of Congress exclusive power relating to subjects belonging to the law of nations was delegated to the United States in Congress assembled, among which was the making of treaties. Treaties were contracts between nations proceeding under the law of nations. Treaties could only be rightfully interpreted according to the law of nations. Treaties were part of the law of the land.

The doctrine of Blackstone concerning the law of nations being part of the law of the land, and the doctrine of Congress concerning a treaty being part of the law of the land, have thus self-evidently an intimate relation, and the latter must have been derived from the former.

In the next month (May, 1787), at Newbern, it was judicially decided that the confederation of the United States was part of the law of the land of North Carolina. See page 250, ante.

No. 10.

Of the origin of the doctrine that the legislature of a state can not repeal some parts of the law of the land of the state.

A further important question must now be asked. Upon what authority could the federal Congress, or any one, say to the legislature of a state that some part or parts of the law of the land could not be repealed by such legislature?

The authority which Congress had in mind could have. been none other than the Rhode Island case of Trevett v. Weeden, which had been decided the previous autumn, as has been already rehearsed. That case had naturally attracted the marked attention of lawyers, statesmen and public men throughout the United States. The elaborate argument of Varnum, the counsel for defendant and the leading spirit of the cause, had been circulated by him in a

printed pamphlet. Varnum himself was a member of the federal Congress and was present on March 20th and April 13th, 1787, when the treaty question was debated and acted upon.* Varnum's professional ability must have favourably impressed his colleagues in Congress, for they elected him one of the judges of the Northwest Territory in the October following. There are therefore special, as well as general, reasons why the Congress of 1787 should have been duly impressed with the decision of the case of Trevett v. Weeden.

In Trevett v. Weeden the law of the land of Rhode Island was expressly involved. The clause of the state statute of August 22d, 1786, which the court repelled as void and refused to be bound by, reads thus: "That the said court, "when so convened, shall proceed to the trial of the said "offender, and they are hereby authorized so to do, with"out any jury, by a majority of the judges present, accord"ing to the laws of the land."

As has been mentioned, Tillinghast, J., in giving his opinion, said that he "took notice of the striking repug"nancy of the expressions of the act without trial by jury "according to the laws of the land,' and on that ground "gave the judgment the same way."

In Varnum's argument at the bar, one of the positions maintained is identical. He denies categorically that an act of the legislature abolishing the trial by jury would become "the law of the land," as certain ardent politicians in Rhode Island then maintained.‡

That in 1788 there was a law of the land of Rhode Island, superior and derogatory to any statute violating the citizens' right to trial by jury, was established by the judgment in the case of Trevett v. Weeden. Rhode Island was a land with a law of the land which in the opinion of the state judges protected the right of trial by jury from infringement by the state legislature. The federal Congress in April, 1787, moved the state to take another step in the

* Journals of Congress, Ed. 1801, vol. 12, pp. 22, 30, 33.

†The same, p. 138.

See pages 236 et seq.. ante.

same direction, when they wrote to Rhode Island and the other states that in each the law of the land protected the faith of treaties and the treaty of peace from infraction by any repeal of the state legislature. The answer of the legislature of Rhode Island to the letter of Congress was one of assent, for in its September session of the same year it passed a statute enacting "that the treaty of peace between "the United States of America and His Britannic Majesty "is fully binding upon all the citizens of this state, as a "law of the land, and is not in any respect to be receded "from, misconstructed, or violated.” *

No. 11.

Of the meaning of the words, "the law of the land," in the first resolution and the federal letter of Congress.

The point has now been reached when, in order to avoid an important misapprehension, it must be pointed out with precision what is the distinctive meaning of the words, "the law of the land," as applied to treaties in the first resolution and in the letter of Congress on the treaty question. It is to these texts, and through them to the before quoted passage of Blackstone, that must be traced the original idea of the application of the words "law of the land” to treaties, as made in paragraph 2. VI. of the constitution. It will be found impossible to understand the intentions of the Framers in their final action upon the text of that section, if there be any misapprehension as to what they meant in saying that treaties shall be the supreme law of the land and that the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. In the proper place it will be shown that the fifth of their series of frames for that paragraph, the final result of careful and elaborate discussion and effort, can not be rationally accounted for, unless "the su"preme law of the land" mean "the supreme law of the

American State Papers, I. 229. Foreign Affairs.