the plan of confederation, offered by Patterson on behalf of New Jersey, had been considered. Although rejected as a whole, part of that plan was subsequently the bridge by which the convention escaped from the legislative negative in every shape and reached what is now paragraph 2. VI.

On July 17th, the legislative negative was again considered, and, although it was not the last time at which its advocates secured a hearing, it was then finally rejected. By a vote of 7 states to 3, the convention rejected the clause of the 6th resolution of the committee of the whole empowering the national legislature “to negative all laws passed by "the several states contravening, in the opinion of the "national legislature, the Articles of Union, or any treaties "subsisting under the authority of the Union."

The debate was as important as it was decisive.

G. Morris, Sherman and L. Martin opposed the negative, Madison and Charles Pinckney advocated it.

Madison observed that "a power of negativing the im"proper laws of the states is at once the most mild and cer"tain means of preserving the harmony of the system. Its "utility is sufficiently displayed in the British system. Nothing could maintain the harmony and subordination "of the various parts of the empire, but the prerogative by "which the crown stifles in its birth every act of every part "tending to discord and encroachment."

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G. Morris said, that he "was more and more opposed to "a negative. The proposal of it would disgust all the "states. A law that ought to be negatived will be set aside "in the judiciary department, and, if that security should "fail, may be repealed by a national law."

Sherman said that "such a power involves a wrong prin"ciple, to wit, that a law of a state contrary to the Articles "of Union, would, if not negatived, be valid and opera"tive."*

In finally rejecting the legislative negative, and overruling its previous action, the convention took a step backwards, only to make a leap forwards. Luther Martin's motion in favour of the plan of what is now paragraph 2. VI.,

* Elliot V. 321, 322.

was, as before stated, immediately offered and adopted without opposition, and apparently without debate. Such action is incomprehensible, if the Framers intended to abandon what had been their avowed object, as well as abandon the measure by which they had intended previously to secure that object. In first adopting and then discarding a legislative negative to be applied with legislative discrimination, and substituting therofor a judicial discrimination applying a general clause of derogation, they intended only to change the means of accomplishing their object, and not to abandon that object itself.

The last observation does not, however, depend merely upon inference, for, subsequently the legislative negative secured a re-hearing in the proceedings on the draft constitution. This was on August 23rd, and the debate throws important light upon the point in question. On that day, shortly after Rutledge had carried his amendment inserting the words "this constitution" in article 8 of the draft (now paragraph 2. VI.), Charles Pinckney made a last effort in favour of the legislative negative. His motion to adopt it coupled it with a proviso requiring a two-thirds vote in both houses. This proposition was not intended to be a substitute for the plan of paragraph 2. VI., but to be an additional method of settling conflicts between the laws of the Union and those of the states. Five speakers avowed themselves favourable to Pinckney's idea in some form, while five opposed it, and one doubted.†

Williamson "thought it unnecessary, and having already "been decided, a revival was a waste of time."

Wilson advocated the measure, saying that "the firmness "of judges is not, of itself, sufficient." This remark of Wil son, though brief, is decisive upon the point in consideration. The plan adopted and the plan rejected had both the

*The great point as to the judiciary of the constitution is that state execution was imposed on state judiciaries and them only by name, and that federal execution was carried out by the federal judiciary par excellence. That is to say, federal execution is normally judicially regulated and caused to be executed. Federal execution sub judicibus per officiales executivos. Elliot V. 468.

same object. Wilson does not speak of state judges, but of judges in general.

Madison favoured Pinckney's measure and moved to commit it, which motion was negatived by six states to five, when Pinckney withdrew his proposition.

Thus ended all chance of reviving the rejected plan of a legislative negative in the nature of the old royal prerogative. The place which such a plan had once temporarily held in the favour of the Framers was permanently occupied by another, viz., the legislative rule of judicial decision, which paragraph 2. VI. now prescribes for settling conflicts between the constitution or other laws of the Union and any contradictory constitutions or laws of the states.

From the foregoing review, it is contended to be a true conclusion that the legislative rule of judicial decision prescribed by paragraph 2. VI. was intended by the convention to be a general disposition for settling the conflicts aforesaid and was not limited to the courts of the several states, but comprehended also the Supreme Court of the constitution and such future courts of the United States as Congress might constitute. If this be true, it is correct to affirm proposition 3d on page 294, 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 this questioned (federal) constitutionality of state laws and state constitutions and to hold the same to be void in so far as contrary to constitution and constitutional laws and treaties of the United States

CHAPTER XXXV.

Of the Framers' intentions concerning the competency of the U. S. Supreme Court to decide upon the questioned constitutionality of acts of Congress and to hold the same void when unconstitutional.

The next matter for consideration is proposition 4th, on page 294, concerning the intentions of the Framers, viz., that the U. S. Supreme Court should be competent in all litigations before it, to decide upon the questioned constitutionality of U. S. laws, and to hold the same to be void when unconstitutional.

The evidence of the truth of this will be found in the proceedings of the convention in framing the text of the clause, which is the beginning of section 2. III., which reads:

"The judicial power shall extend to all cases in law and "equity arising under this constitution, the laws of the "United States and treaties made, or which shall be made, "under their authority."

The history of the formation of this text may be begun by quoting Randolph's and Madison's motion, passed on June 13th, which reads:

"That the jurisdiction of the national judiciary shall ex"tend to cases, which respect the collection of national "revenue, impeachments of any national officers, and ques"tions which involve national peace and harmony." *

This resolution is repeated verbatim in the series of resolutions reported, June 19th, by the committee of the whole, being resolution the 13th.+

* Journal, 121.

† Ib. 137,

On July 18th, the clause of "impeachments of national "officers" was stricken out and it was then unanimously resolved to alter the said 13th resolution, so as to read: "That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legisla"ture, and to such other questions as involve the national peace and harmony."*

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This resolution is reported verbatim in the series of resolutions, stated by the Journal to be referred to the first committee of five with instructions to report a constitution, being resolution the 16th.†

On August 6th, that committee reported the draft of a constitution. The beginning of the 3d section of its 11th article reads:

"The jurisdiction of the Supreme Court shall extend to "all cases arising under laws passed by the legislature of "the United States."

On August 27th, when the 11th article of the draft constitution was under consideration, and the above text was reached, the following proceedings took place as reported by Madison: t

"Dr. Johnson moved to insert the words 'this constitu"tion and the' before the word 'laws.' Mr. Madison "doubted whether this was not going too far, to extend the "jurisdiction of the court generally to cases arising under "the constitution, and whether it ought not to be limited "to cases of a judiciary nature. The right of expounding "the constitution, in cases not of this nature, ought not "to be given to that department. The motion of Dr. Johnson was agreed to, nem. con., it being generally supposed "that the jurisdiction given was constructively limited to cases of a judiciary nature.

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"On motion of Mr. Rutledge the words 'passed by the) "legislature,' were stricken out; and after the words. “United States,' were inserted, nem. con., the words, ‘and

* Journal, 188, 189.

† Ib. 212, 207, 199. On July 20th, the executive made removable by impeach5 Elliot, 343.

ment.

Elliot V. 483.