of past experience seemed to require. When this subject was first brought forward in the Convention the restriction was made to embrace all retrospective laws bearing upon contracts, which were supposed to be included in the term "ex post facto laws." It being ascertained, however, that the latter phrase would not, in its usual acceptation, extend to civil cases, it became necessary to consider how such cases were to be provided for, and how far the prohibition should extend. The provision of the ordinance was regarded as too sweeping; no legislature, it was said, ever did or can altogether avoid some retrospective action upon the civil relations of parties to existing contracts, and to require it would be extremely inconvenient. At length a description was found which embodied the extent to which the prohibition could with propriety be carried. The legislatures of the states were restrained from passing any "law impairing the obligation of contracts;" a provision that has been found amply sufficient, and attended with the most salutary consequences, under the interpretation that has been given to it.'

Bills of attainder and ex post facto laws, which had not been included in the prohibitions on the states by the committee of detail, were added by the Convention to the list of positive restrictions, which was thus completed.

In the class of conditional prohibitions, or those acts which might be done by the states with the consent of Congress, the committee of detail had placed the laying of "imposts or duties on imports." To this the Convention added "exports," in order to make the restriction applicable both to commodities carried out of and those brought into a state. But this provision, as thus arranged, would obviously make the commercial system extremely complex and inconvenient. On the one hand, the power to lay duties on imports had been conferred upon the general government, for the purposes of revenue, and to leave the states at liberty, with the consent of Congress, to lay additional duties, would subject the same merchandise to separate taxation by two distinct governments. On the other hand, if the states should be deprived of all power to lay duties on exports, they would have no means of defraying the charges of inspecting their own productions. At

'Elliot, V. 485, 488, 545, 546.

the same time it was apparent that, under the guise of inspection laws, if such laws were not to be subject to the revision of Congress, a state situated on the Atlantic, with convenient seaports, could lay heavy burdens upon the productions of other states that might be obliged to pass through those ports to foreign markets. Again, if the states should be deprived of all power to lay duties on imports, they could not encourage their own manufactures; and if allowed to encourage their own manufactures by such state legislation, it must operate not only upon imports from foreign countries, but upon imports from other states of the Union, which would revive all the evils that had flowed from the want of general commercial regulations. To prevent these various mischiefs the Convention adopted three distinct safeguards. They provided, first, by an exception, that the states might, without the consent of Congress, lay such duties and imposts as "may be absolutely necessary for executing their inspection laws;" second, that the net produce of all duties and imposts laid by any state, whether with or without the consent of Congress, shall be for the use of the Treasury of the United States; third, that all such state laws, whether passed with or without the previous consent of Congress, shall be subject to the revision and control of Congress. There is, therefore, a twofold remedy against any oppressive exercise of the state power to lay duties for purposes of inspection. The question whether the particular duties exceed what is absolutely necessary for the execution of an inspection law may be made a judicial question; and in addition to this, the law imposing the inspection duty is at all times subject to the revision and control of Congress. Any tendency to lay duties or imposts for purposes of revenue or protection is checked by the requirement that the net produce of all duties or imposts laid by any state on imports or exports shall be paid over to the United States, and such tendency may moreover be suppressed by Congress at any time, by the exercise of its power of revision and control.

In order to vest the supervision and control of the whole subject of navigation in Congress, it was further provided that no state, without the consent of Congress, shall lay any duty of tonnage. An exception, proposed by some of the Maryland and Vir

'Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548.

ginia members, with a view to the situation of the Chesapeake Bay, illustrates the object of this provision. They desired that the states might not be restrained from laying duties of tonnage "for the purpose of clearing harbors and erecting light-houses." It was perhaps capable of being contended, that, as the regulation of commerce was already agreed to be vested in the general government, the states were restrained by that general provision from laying tonnage duties. The object of the special restriction was to make this point entirely certain; and the object of the proposed exception was to divide the commercial power, and to give the states a concurrent authority to regulate tonnage for a particular purpose. But a majority of the states considered the regulation of tonnage an essential part of the regulation of trade. They adopted the suggestion of Mr. Madison, that the regulation of commerce was, in its nature, indivisible, and ought to be wholly under one authority. The exception was accordingly rejected.'

The same restriction, with the like qualification of the consent of Congress, was applied to the keeping of troops or ships of war in time of peace, entering into agreements or compacts with another state or a foreign power, or engaging in war, unless actually invaded or in such imminent danger as will not admit of delay.'

1

By a vote of six states against four. Elliot, V. 548.

2

Elliot, V. 548.

CHAPTER XXVIII.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.-SUPREMACY OF THE NATIONAL GOVERNMENT.-DEFINITION AND PUNISHMENT OF TREASON.

AMONG the resolutions sent to the committee there were four which had reference to the supremacy of the government of the United States. They declared that it ought to consist of a su preme legislative, executive, and judiciary; that its laws and treaties should be the supreme law of the several states, so far as they related to the states or their citizens and inhabitants, and that the judiciaries of the states should be bound by them, even against their own laws; that the officers of the states, as well as of the United States, should be bound by oath to support the Articles of Union; and that the question of their adoption should be submitted to assemblies of representatives to be expressly chosen by the people of each state under the recommendation of its legislature.'

In order to give effect to these precise and stringent directions, the committee of detail introduced into their draft of a constitution a preamble; two articles asserting and providing for the supremacy of the national government; a provision for the oath of officers; and a declaration of the mode in which the instrument was to be ratified.

The preamble of the Constitution, as originally reported by this committee, differed materially from that subsequently framed and adopted. It spoke in the name of the people of the states of New Hampshire, Massachusetts, etc., who were said "to ordain, declare, and establish this Constitution for the government of ourselves and our posterity;" and it stated no special motives for its

These were the 1st, 7th, 20th, and 21st of the resolutions. Ante, p. 439 et seq., note.

establishment. In this form it was unanimously adopted on the 7th of August. But when, at a subsequent stage, the instrument was sent to another committee for revision of its style and arrangement, the names of the states were stricken out of the preamble, and it was made to read We, the people of the United States. This, however, did not change the meaning, for the preamble, by the words "people of the United States," refers to the people of the states. The language thus employed in the preamble has justly been considered as having an important connection with the provisions made for the ratification of the instrument to which it was prefixed.

The articles specially designed to assert and carry out the supremacy of the national government, as they came from the committee, embodied the resolutions on the same subject which had passed the Convention. The only material addition consisted in the qualification that the legislative acts of the United States, which were to be the supreme law, were such as should be made in pursuance of the Constitution. Subsequently the article was so amended as to make the Constitution, the laws passed in pursuance of it, and the treaties of the United States the supreme law of the land, binding upon all judicial officers.'

2

It is a remarkable circumstance that this provision was originally proposed by a very earnest advocate of the rights of the states Luther Martin. His design, however, was to supply a substitute for a power over state legislation, which had been embraced in the Virginia plan, and which was to be exercised through a negative by the national legislature upon all laws of the states contravening, in their opinion, the Articles of Union or the treaties subsisting under the authority of the Union. The purpose of the substitute was to change a legislative into a judicial power, by transferring from the national legislature to the judiciary the right of determining whether a state law supposed to be in conflict with the Constitution, laws, or treaties of the Union should be inoperative or valid. By extending the obligation to regard the requirements of the national Constitution and laws to the judges of the state tribunals, their supremacy in all the judicatures of the country was secured. This obligation was enforced

The Constitution, Art. VI. (See Appendix.)

July 17th. Elliot, V. 322.