say that, so far as we have any authentic record of its debates, only two members of that body unequivocally expressed themselves as opposed to that power. A third member expressed the opinion that "no such power ought to exist," but confessed himself at a loss to find a substitute for it, and subsequently, in a paper advising a ratification of the Constitution, conceded that the power had been conferred. To these must be added Mr. Madison, who, though opposed to "the subordination of the legislature," thought the court might properly be authorized to finally and conclusively determine what he called “judiciary questions "; and I think an examination of all he said on that subject will make it plain that he only objected to giving the court the power to decide what we now call "political questions " -a power which the court itself has never assumed, and has repeatedly disclaimed. Other than those four delegates, every member of that convention who adverted to the question, and many of them did so, declared unequivocally that the courts should have the power to declare every act repugnant to the Constitution null and void.

Turning now to the Constitution itself, we find on the very face of it an overwhelming refutation of the charge that it is inconsistent with a republican form of government for a court to declare a legislative enactment void; because the Constitution explicitly commands all state judges to hold certain legislative enactments void, and exacts from them a solemn promise under oath to do so. The second sentence of Article VI of the Constitution of the United States declares:

"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding."

The history of that provision will illuminate it better than any analysis which I could make of it, and with your permission I will briefly recite it.

One of the serious defects in the government under the Articles of the Confederation was that the states sometimes refused to execute the laws of the General Congress, and several of them had so far disregarded our treaty of peace with Great Britain

as to bring us almost to the verge of a rupture with that country. Congress, unable itself to nullify the state laws in contravention of that treaty, implored the states to repeal them, even going so far as to prepare the form of a repealing statute, which was transmitted by an official communication to the several states.

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That circumstance explains the peculiar phraseology with respect to the supremacy of treaties-a phraseology which has led some men erroneously to suppose that the Constitution does not limit the treaty-making power as it does the law-making power. The different language was intended merely to meet a different condition, and not to establish a different principle. The laws of the new government would, of course, be made under the Constitution which was then proposed, and could, therefore, be made in pursuance thereof." Not so, however, with the treaties, because it was the intention that the new government should assume the obligations of, and execute, the treaty of peace with Great Britain, as well as all other existing treaties with foreign nations; and, as they had been made before the Constitution was adopted, they had not, of course, been “made in pursuance" of it, though they had been made under the authority of the United States, for that was the official designation of the government preceding the present one.

Instructed by their experience, it is not surprising that all concurred in thinking that the authority of the new government should be made paramount within the limits assigned to it by the Constitution. Randolph's plan of government provided that the national legislature should have the power:

"To negative all state laws passed by the several States contravening, in the opinion of the National Legislature, the Articles of Union or any treaty subsisting under the authority of the Union."

The plan of Pinkney provided that:

"The Legislature of the United States shall have the power to revise the laws of the several states that may be supposed to infringe the powers exclusively delegated by this Constitution to Congress and to negative and annul such as do."

The plan of Patterson contemplated only a revision of the Articles of Confederation, and yet it provided:

"That all the acts of the United States in Congress made by virtue and in pursuance of the powers hereby and by the Articles

of Confederation vested in them, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States. . . . and that the judiciary of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding."

Hamilton's plan declared that:

"All of the laws of the States contrary to the Constitution or laws of the United States shall be utterly void."

And as a further assurance of federal supremacy it provided that the general government should appoint the Governors of the several states, who should have a veto on all state laws.

It was even proposed more than once that the general government should be given the power to negative all state laws without regard to whether they were contrary to the Constitution or the laws or the treaties of the United States, and some of the ablest men in that convention cordially supported that proposition; but as the debate proceeded it became apparent to the delegates that such a power, if conferred on the general government, would ultimately destroy every vestige of states' rights, and it was rejected. But the convention was so thoroughly impressed with the necessity of protecting the authority of the new government against contravening state enactments that they applied themselves to the task of finding a way to do it; and with a practical unanimity they agreed upon the clause which I have read to

you.

Confronted with this definite and positive requirement that all state judges shall hold state laws and even state constitutions void in certain cases, no man should discredit his intelligence and candor by saying that a republican form of government will not permit a court to pronounce the acts of a legislature void.

In this provision requiring state judges to hold state constitutions and state laws void, if they conflict with the federal Constitution or federal laws or federal treaties, there is an implication which seems to have escaped many of these gentlemen who assert that there is not a line in the Constitution which requires, or even authorizes, any court to annul a legislative enactment. The supremacy of the Constitution of the United States is made absolute; but the laws of the United States are made

supreme only with a most important qualification. State judges. are not required to enforce all federal laws against state constitutions and state laws, but only such federal laws as are "made in pursuance" of the Constitution. Therefore, the Constitution plainly requires a state judge to pass upon the constitutionality of every federal law which is alleged to be in conflict with state law. That must be true, because otherwise state judges would be compelled to disregard a state constitution or a state law against which a federal right was asserted without considering that very important qualification which gives a federal law supremacy only when "made in pursuance" of the Constitution. It would be obviously impossible for a judge to decide any case where a right was claimed under a state statute and a defense made under a conflicting federal statute, or vice versa, without determining whether the federal statute was "made in pursuance" of the federal Constitution; because unless it was so made, it is not "the supreme law of the land," and it could not invalidate the state statute. In such a case, if the federal law was "made in pursuance" of the federal Constitution, then the court would be compelled to declare the state law void; and if the federal law had not been "made in pursuance of the federal Constitution, the court would be compelled to declare it void in order to sustain the state law. But in either event, the court would be compelled to declare one or the other law void.

I have not, of course, overlooked the fact that the special provision which I have been emphasizing is addressed to the judges of the several states, and not to the judges of the United States; but that provision is followed immediately by another, which compels all federal judges to swear that they will support the Constitution of the United States. How can any judge keep his oath to support the Constitution unless he gives effect to its declaration that it is the supreme law of the land; and how can he give effect to that declaration unless he disregards all laws which contravene the Constitution?

Let us put the question to a practical test, and suppose that Congress had enacted a law granting to John Doe the homestead of Richard Roe, and that, Richard Roe having refused to surrender his property, John Doe instituted a suit to recover it.

When that case finally reaches the Supreme Court of the United States and it must be remembered that the Supreme Court never passes upon the validity of any law except when required to do so in a case properly brought before it-the record will disclose that John Doe had declared on the Act of Congress, and that Richard Roe had plead that provision of the Constitution which guarantees that no person shall be deprived of his property without due process of law. The case is before the court and must be decided. The Act of Congress plainly gives Richard Roe's property to John Doe; but that act is plainly forbidden by the Constitution, because without the shadow of a doubt a legislative transfer of one man's property to another is not due process of law. Both the Act of Congress and the Constitution. apply to the case; but both cannot be applied to it. What shall the court do? Suppose that question was submitted to an intelligent layman. How do you think he would decide it? He might know nothing about the division of power between the general government and the states; he might know nothing about the distribution of federal powers among the several departments; he might know nothing about the theories of legislative omnipotence or judicial control; but he would know that having taken an oath to support the Constitution as the supreme law of the land, he could not, without violating that oath, enforce any Act of Congress which violates the Constitution. That is the moral view which an intelligent layman would take of the question; and it is the legal view which all judges must take of it.

Turning now from the Constitution, let us consider the political aspect of this question, and I think I can demonstrate that, according to the maxim that "the will of the people shall prevail," the doctrine of judicial control is unassailable. When a law of Congress conflicts with the Constitution of the United States we have the will of the people expressed in two different forms; for certainly nobody will deny that the Constitution expresses the will of the people, and I will not deny that the statute also expresses the will of the people. If that stated the whole case, I would abandon the argument, because the statute, being the last expression of the popular will, might well be received as the controlling one. But that does not state the whole case, because the Constitution is the more deliberate will