employed are the whole powers of declaring war and its incidents. See Act of 12th Jan. 1862, 12 St. 589, 590. The latitude of expres- 117–133. sion here used, secures each State not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. Story's Const. § 1818; Federalist, No. 43, p. 215. ture? 233, 234, 235. "AND ON THE APPLICATION OF THE LEGISLATURE, OR OF Who are THE EXECUTIVE (WHEN THE LEGISLATURE CANNOT BE CONVENED), the Legisla AGAINST DOMESTIC VIOLENCE."-The President must determine what body of men constitute the legislature, and who is the governor; which is the government and which party is unlawfully arrayed against it, before he can act. Luther v. Borden, 7 How. 43-45. The history of the rebellion affords us these examples: 1. The case of Virginia. A large majority of the legislature of the State adhered to the rebellion, and after an ordinance of secession Give the Virginia became one of the "Confederate States of America." But example of Virginia? Congress recognized the minority of the legislature assembled at Wheeling as the legislature of Virginia, with authority to consent 229, 230. to the creation of the new State of West Virginia, which was admitted into the Union. 2. In the case of Missouri. The majority of Misof the legislature and the governor adhered to the rebellion; and, souri? after the commencement of hostilities, passed an ordinance of secession; and the legislature elected senators, and a minority of the people elected representatives to the Confederate Congress at Richmond. This was in accordance with an enabling act of that Congress, and the State was admitted as a member of the "Confederate States," and continued to be represented until the overthrow of the rebellion. On the other hand, Missouri retained its place in the Union through the agency of a convention elected by the authority of an act of the legislature passed in 1860, which convention, having refused to pass an ordinance of secession, was reconvened upon the call of its president, and was recognized as the lawful authority of Missouri by the government of the United States. 3. In the case of Kentucky. The legislature refused to Of Kencall a convention or to pass an ordinance of secession. But a con- tucky? vention of rebels did assemble and pass an ordinance of secession; and senators and representatives were elected to the Congress of the "Confederate States," who served until the close of the rebellion. 4. Louisiana. This was one of the seven original seceded of LouisiStates which adopted the Confederate Constitution ordained at ana? Montgomery, Alabama, in 1861. After the occupation of Louisiana by the federal troops, a quorum of the rebel legislature could not be obtained. But it was solemnly decided by the Supreme Court of Louisiana, that so long as a single parish remained loyal to the Confederacy, such parish, or minority of the people, should be regarded as the State of Louisiana; and that the conquered districts of the State were lost to it, and would so remain until reconquered or restored by a treaty of peace. 5. Arkansas and Ten- Arkansas nessee had the same history as Louisiana. And yet all these practically dissolved corporations and their exiled governors continued to be recognized by the Confederate government as the lawful authorities of those States. 6. Maryland. The majority of the legis- Of Marylators being known to side with the rebellion, the assemblage of land? and Tennes see? that body was prevented by the military power of the United What is the States. Therefore, the country seems to be estopped upon the docdoctrine trine, that when the exigencies of the republic require it, the govupon which the country ernment of a State, whether regular or irregular, majority or minoriis estopped? ty, which adheres to the Union and acknowledges the supremacy of the federal Constitution, will be recognized and treated as the lawful legislature and executive entitled to the guaranty to be protected. What is violence"? "AGAINST DOMESTIC VIOLENCE."-By the first act of Congress to secure this guaranty (28th Feb., 1795, 1 Stat. 424), it is provided, that "in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State, or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any State, or States, as may be applied for, as he may judge sufficient to suppress such insurrection." Luther v. Borden, 7 How. 43; Brightly's Digest, p. 440, § 1-4. If there be an armed conflict, it is a case of "domestic vio"domestic lence," and one of the parties must be in insurrection against the lawful government. As the law gives a discretionary power to the President, to be exercised by him upon his own opinion of certain facts, he is the sole and exclusive judge of the existence of those facts. If he err, Congress may apply the proper remedy. But the courts must administer the law as they find it. (Martin v. Mott, 12 Wheat. 29-31.) Luther v. Borden, 7 How. 44, 45. And see Act of 12th July, 1861. 12 St. 257; 2 Brightly's Dig. 1231, Tit. INSURRECTION; United States v. One hundred packages, 11 Am. L. R. 419; Kulp v. Ricketts, 20 Leg. Int. 228; Vallandigham's Trial, 259; Hodgson v..Millwood, 20 Leg. Int. 60, 164; Ohio v. Bliss, 10 Pittsburgh L. J. 304. The acts upon "INSURRECTION are fully collected in 2 Brightly's Dig. p. 12301239. The framers of the Constitution seemed to have looked to the possibility of domestic violence by the slaves. Federalist, No. 43, p. 246. ARTICLE V. How are amend The Congress, whenever two-thirds of both houses ments to be shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legisla139, 144, 145. tures of two-thirds of the several States, shall call a made? convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided, that no amendment, which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. necessary? 236. CONGRESS MAY PROPOSE AMENDMENTS, &c.-These terms Is the Presi need no definition. Upon a call of Congress in regard to the sub- dent's apmission of the fourteenth amendment to the legislatures of the proval States, President Johnson more than intimated an opinion, that the resolution proposing the amendment ought to be submitted to the President's approval. But the practice has been otherwise; and as the reason for such a rule is superseded by the "two- 66-70. thirds" vote, the rule itself ought to cease. It has been held that 275-277, the approval of the President is not necessary. Hollingsworth v. Virginia, 3 Dall. 378. All the amendments have been proposed to 244, 274, 275. the legislatures; none to conventions of the States. See Federalist, No. 43; Story's Const. § 1826-1831; 1 Tucker's Black. Com. App. 371, 372. The amendments when made are binding upon the States. ARTICLE VI. 242, did the States [1.] All debts contracted, and engagements entered What debts into, before the adoption of this Constitution, shall be United as valid against the United States, under this Consti- assume? tution, as under the Confederation. 237. UNITED STATES TO PAY THE DEBTS OF THE CONFEDERATION.—This was but asserting a principle of moral obligation, which always applies to revolutions. See Story's Const. § 18321835; Journal of Convention, 291; Jackson v. Lunn, 3 Johns. Cases, 109; Kelly v. Harrison, 2 Id. 29; Terrett v. Taylor, 9 Cr. 50; Rutherford Inst. B. 2, ch. 9, § 1, 2; ch. 10, § 14, 15; Vattel, Prelim. Dis. ch. 1, § 1; ch. 5, § 64; ch. 14, § 214-216; Grotius, B. 2, ch. 9, § 8, 9; Federalist, Nos. 43, 84; 1 Tuck. Black. Com. App. 368; Confederation, Art. XII. ante, p. 19. The principle is, that revolution ought to have no effect whatsoever upon private rights and contracts, or upon the public obligations of nations. Terrett v. Taylor, 9 Cr. 50. supreme land? [2. This Constitution, and the laws of the United What is the States which shall be made in pursuance thereof, and law of the 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 What is tution? 2. 195, 242. 2, 67, 68. be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding. 238. THIS CONSTITUTION creates the government. Of course it the Consti- stands paramount. And if any law of Congress, treaty, or State law, be found to be a plain infraction of this Constitution, they will be held to be void. The object was to establish a government which, to the extent of its powers, is supreme. Story's Const. § 1837; Ableman v. Booth, 21 How. 517, 520. A law, by the very meaning of the term, includes supremacy. Story's Const. §1837. And the government must be strong enough to execute its own laws, by its own tribunals. Ableman v. Booth, 21 How. 517. The supremacy could not peacefully be maintained unless clothed with judicial power. Id. 518, 519. This clause fully compared with the judicial power. Id. 179, 245. 195-198. What is a law? 246. 195, 203. 211. 138. ཤ 239. "AND ALL LAWS OF THE UNITED STATES WHICH SHALL BE MADE IN PURSUANCE THEREOF."-A LAW is a solemn expression of legislative will. Louisiana Civil Code, Art. I. It is a rule of action. It is a rule of civil conduct prescribed by the "supreme" power in a State. 1 Bl. Com. 44; 1 Kent's Com., Lect. XX. p. 447. It includes supremacy. Story's Const. § 1738. See Federalist, Nos. 33, 64; Gibbons v. Ogden, 9 Wh. 210, 211; McCulloch v. Maryland, 4 Wh. 405, 406. All such laws, made by the general government, upon the rights, duties, and subjects specially enumerated and confided to their jurisdiction, are necessarily exclusive and supreme, as well by express provision as by necessary implication. Sims' Case, 7 Cush. 729 And the general government has the power to cause such laws to be carried into full execution, by its own powers, without dependence upon State authority, without any let or restraint imposed by it, Id. A law is made in pursuance of the Constitution, whenever it is enacted by a constitutional quorum of Congress and approved by the President; or, being returned with his objections, is passed over the veto by the necessary two-thirds vote. It then becomes the supreme law; and is generally regarded as binding until decided to be unconstitutional by the Supreme Court of the United States, in a proper case arising upon the law. After grave consideration, cases might arise where, after the laws had been passed, with all constitutional forms and time, and placed on statute books, it would be the duty of the executive to refuse to carry them out, regardless of consequences. This would be involving the country in a justifiable civil war. President Johnson's Message, 3d Dec., 1867. The editor cannot give this sentiment without expressing his disbelief in its correctness. And The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution. as the courts of a State, and the courts of the United States, might, and certainly would, often differ as to the extent of the powers conferred by the government, it was manifest that serious controversies would arise between the authorities of the United States and of the States, which must be settled by force of arms, unless some tribunal And no power is more clearly conferred by the Constitution and laws of the United States, than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, &c. Id. 525. 138. 240. A TREATY is a solemn agreement between nations. Fos- Define a ter v. Neilson, 2 Pet. 314. treaty? 178. treaties? Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the States; What is the and whoever may have this right, it is to be protected. Owing v. rule as to Norwood's Lessee, 5 Cr. 348; People v. Gerke, 4 Am. L. R. 604; 195. 6 Opin. 291. But though a treaty is a law of the land, and its provisions must be regarded by the courts as equivalent to an act of the legislature when it operates directly on a subject, yet, if it be merely a stipulation for future legislation by Congress it addresses itself to the political and not to the judicial department, and the latter must await the action of the former. Foster v. Neilson, 2 Pet. 253. "Shall be confirmed," was construed to act presently on the perfect Spanish grants. Id. A treaty ratified with proper formalities, is, by the Constitution, the supreme law of the land, and the courts have no power to examine into the authority of the persons by whom it was entered into on behalf of the foreign nation. Doe v. Braden, 16 How. 635. Though a treaty is the law of the land, under the Constitution, Congress may repeal it, so far as it is municipal law, provided its subject-matter be within the legislative power. Taylor v. Morton, 2 Curt. C. C. 454; Talbot v. Seaman, 1 Cr. 1; Ware v. Hylton, 3 Dall. 361; Story's Const. § 1838. A treaty concluded by the President and Senate binds the nation, What is the in the aggregate, and all its subordinate authorities, and its citizens obligation as individuals, to the observance of the stipulations contained in it. of a treaty? (Ware v. Hylton, 3 Dall. 199; Worcester v. Georgià, 6 Pet. 575.) Fellows v. Dennison, 23 N. Y. R. (9 Smith), 427. law? "SUPREME LAW OF THE LAND."-The highest law; that which What is the binds all the people of the nation, and cannot be abrogated by the supreme States. It was intended to declare that, to the extent of its pow- 2, 6, 238. ers, the Constitution, laws, and treaties of the United States, are prescribed by the "supreme power of the State," and are supreme. This power of the government can be exercised by Congress, or, to the extent of the treaty-making power, by the President and Senate. The national rule of action then is: 1. The Constitution; What is the 2. Acts of Congress; 3. Treaties; 4. The judicial decisions as national rule precedents. The State constitutions, laws, and decisions on, are subordinate to these. See Ableman v. Booth, 21 How. 525; Story's Const., § 1836-1841; Federalist, No. 33; Gibbons v. Ogden, 9 Wheat. 210, 211; McCulloch v. Maryland, 4 Wheat. 405, 406; Letter of Congress, 13th April, 1787; 12 Journal of Congress, 32-36; 1 Wirt's State Papers, 45, 47, 71, 81, 145; Sergt's Const. ch. 21, pp. 212, 219; ch. 34, pp. 406, 407; Ware v. Hylton, of action ?.... |