14 national. Thirdly, it means that no act of legislation which is contrary to its provisions is to be regarded or respected as law. A treaty which is in violation of the constitution' would be null and void. So also would any act of congress which should be in excess of the legislative power granted to that body by the constitution, or in disregard of any of its prohibitions. If the people of a state amend their constitution or adopt a new constitution, it must conform to the federal constitution. If it does not, it is of no effect. And every act of the legislature of every state must equally obey the mandates of the supreme law, at the risk of being declared nullity. But this provision does not operate to make every clauseof the federal constitution a part of the constitution of each state. It relates only to matters wherein the general government assumes to control the states, either by the exercise of exclusive jurisdiction or by direct prohibition of certain kinds of legislative action by the Moreover, acts of congress passed in pursuance of the constitution are also the "supreme law of the land." Hence any act of congress which is valid and constitutional is supreme as against any law of a state which conflicts with it. When a state statute and a federal statute operate upon the same subject-matter, and prescribe different rules concerning it, and the federal statuteis one within the competency of congress to enact, the state statute must give way; it is in effect no law, but an abortive attempt to exercise a power not possessed by the state legislature. Such is the effect when a conflict is found to arise between a state statute and the act of congress called the "interstate commerce law."15 So also, when congress exercises its power to enact a bankruptcy law, that law becomes the supreme law of the land, and supersedes all state legislation dealing with the subject of insolvency. And again, the patent laws of the United States are supreme as against all state laws the enforcement of which would be inconsistent with the rights acquired under the federal legislation.1 14 In re Rafferty, 1 Wash. St. 382, 25 Pac. 465. 15 Gulf, C. & S. F. Ry. Co. v. Hefley, 158 U. S. 98, 15 Sup. Ct 802. 16 Columbia Wire Co. v. Freeman Wire Co., 71 Fed. 302. BL.CONST.L.-3 CHAPTER III. ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. 19. 20. 21. 22-24. 25-27. Government of the Colonies. The Continental Congress and the Articles of Confederation. Amendment of the Federal Constitution. Establishment of State Constitutions. 28-29. Amendment of State Constitutions. GOVERNMENT OF THE COLONIES. 19. Previous to the War of Independence, the thirteen political communities which afterwards became the original states of the American Union were colonies of Great Britain. Three forms of government obtained in the colonies: (a) Provincial. The first form of government was that which prevailed in the provinces of New Hampshire, New York, New Jersey, Virginia, North Carolina, South Carolina, and Georgia. Under this system, a gov ernor was appointed by royal commission, to act as the king's representative. He was invested with general executive power, a veto on local legislation, and the power to establish courts and appoint judges. He was assisted by a council, also nominated by the king. which acted as the upper house of the local legislature. The lower house consisted of a general assembly of representatives of the free holders of the province. In the proprietary governments the direct executive power had been granted out by the crown to individuals, who held them in the nature of feudatory principalities, with all the inferior royalties and subordinate powers of legislation which formerly belonged to the owners of counties palatine, but still subject to the sovereignty of the parent country. The proprietaries appointed the governors, and legislative assemblies were convened under their authority. This form of government existed, at the time of the revolution, in Maryland, Pennsylvania, and Delaware. In three of the colonies, Massachusetts, Rhode Island, and Connecticut, the government was founded on charters granted by the crown, which secured to them a larger measure of liberty, and indeed invested them with general powers of local self-government, subject only to the suzerainty of Great Britain and to certain particular restrictions which will be presently noticed. In the first-mentioned colony, indeed, the governor was appointed by the king; but in the two others the governor, council, and assembly were annually chosen by the freemen, and all other officers were appointed by their authority. In all the colonies the people claimed the right to enjoy all the liberties, privileges, and immunities of British subjects, including those safeguards against royal or governmental oppression which had been gradually evolved in the course of English history, and the benefit of the common law, in so far as the same was applicable to their needs and their situation. They also claimed that, for all purposes of domestic and internal regulation, their own legislatures possessed entire and exclusive authority. In all matters of this sort, it was strenuously denied that parliament possessed the power to legislate directly for the colonies. England's financial straits having forced her to attempt the levy and collection of taxes in the colonies, by act of parliament without the concurrence of the local legislatures, the power to tax the people without representation on their part was stoutly resisted and denied, and this was one of the causes which led to the revolt of the colonies. On the other hand, it was always provided that the laws passed by the colonial legislatures should not be repugnant to, but, as near as might be, agreeable to, the laws. and statutes of England, and this sometimes gave occasion to the royal government to set aside or destroy acts of the local legislatures. Again, there could be no full measure of self-government when the legislative functions of the popular assemblies were participated in by a governor and council not chosen by the suffrages of the people. Moreover, the king and parliament never abandoned the claim that they had authority to bind the colonies by legislation in all cases whatsoever. Appeals lay to the king in council from the decisions of the highest courts of judicature in the colonies; and English statesmen contended that the royal prerogative was exercisable in his colonial dependencies in many more particulars than the colonists were willing to concede.1 THE CONTINENTAL CONGRESS AND THE ARTICLES OF CONFEDERATION. 20. The first positive step towards the Union was the formation of the Continental Congress, a revolutionary body, which inaugurated the war, declared the independence of the colonies, and drafted certain articles of confederation. Upon the ratification of these articles by the states, the United States of America came into being. The Continental Congress. The first national legislative assembly in the United States was the Continental Congress, which met in 1774, in pursuance of a recommendation made by Massachusetts and adopted by the other colonies. In this congress all the colonies were represented except Georgia. The delegates were in some cases chosen by the legislative assemblies in the states; in others, by the people directly. The powers of this congress were undefined. The recommendation which led to it contemplated nothing more than a deliberation upon the state of public affairs. But by the acquiescence of the states and their people, it proceeded to take measures and pass resolutions which concerned the general welfare and had regard to the inauguration and prosecution of the war for independence. The first Continental Congress was succeeded in the following year, according to its own proposal, by another body chosen and organized in the same manner, in which all the states were represented. This body provided for the raising and equipping of an army, intrusted the command in chief to General Washington, and framed, adopted, and promulgated the Declaration of Independence. The Continental Congress was not authorized by any pre-existing law or ordinance. Its acts and determinations were entirely outside the pale of ordinary law. It was not intended to be permanent, nor was it designed to be a national or 1 See 1 Story, Const. §§ 159-197. confederate government. It was merely raised up, as an extraordi nary institution, to meet the special exigencies of the situation of the colonies. It was regarded rather as an advisory body, wielding the war powers of the whole people, than as a government.2 The Articles of Confederation. When it became apparent that a war had been entered on which must result either in the destruction of American liberties or in the introduction to the world of a new nation, it was evident to all those interested in the conduct of public affairs that the revolutionary congress was at once too weak and too indefinite a bond between the states. It was necessary to devise a scheme of association which would insure vigor and faithful co-operation in the conduct of hostilities and would also more clearly apportion the powers of government between the states and the congress. The congress, to this end, prepared a series of "Articles of Confederation and Perpetual Union," and submitted them to the states for their approval and ratification in 1777. Before the close of the following year the articles had been ratified by all the states except Delaware and Maryland. Of these, the former gave in its adherence in 1779, and the latter in 1781. The articles of confederation provided that the style of the confederacy should be "The United States of America"; that "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in congress assembled;" that "the said states hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them or any of them on account of religion, sovereignty, trade, or any other pretense whatever." The articles also provided for interstate rights of citizenship, the extradition of criminals, and the according of full faith and credit to the records and judicial proceedings of each state in all the others. They provided for an annual congress of delegates to be appointed in the several states, but re 2 On the Continental Congress, see 1 Story, Const. §§ 198-217; Pom. Const. Law, §§ 45-56; Rawle, Const. pp. 19-26; 1 Von Holst, Const. Hist. pp. 1-5. |