§ 1842. From this supremacy of the Constitution and laws and treaties of the United States, within their constitutional scope, authorized by the assent of her parliament to execute the engagements contracted by her in its several articles.' Such a clause is, I am assured, always introduced in modern treaties of this kind: and before the present occasion its exigency was met by the adoption of a joint address to the Queen approving comprehensively the diplomatic programme. "I believe it safe to say, nowadays, that a treaty which calls for a law in order to be executed, may be constitutionally nullified by the refusal of either house, the commons or the lords, to enact that law. If it be necessary to assent, it is competent to dissent. Treaties requiring appropriations of money; treaties establishing tariffs or mutual terms of interchanging products; and treaties relinquishing territorial dominions, perhaps, sink into the power of parliament. In the olden time, Blackstone would have been shocked if the executive, bent upon fulfilling an international engagement, had thought it worth while to say more than 'Pass the bill.' Stet pro ratione voluntas ! "It may be doubted whether the check upon executive discretion be not, in this sphere of public agency, better ascertained here than with us. Chancellor Kent, I think, expressed astonishment and regret that a resolution, founded on the incidents of Jay's Treaty, was passed by the house of representatives in 1796, declaring what is now understood to be settled English law and practice; that is, if a treaty depend for the execution of any of its stipulations upon a legislative act, the house could and should determine on the expediency of carrying it into effect or letting it abort. Whether the principle of that resolution was abandoned, or only pretermitted on the emergency of 1816, may be questioned. It disappoints expectation, but in reality is not illogical, that the treaty-making power, when in the hands of a hereditary monarch, should be more trammelled and restricted than when in the hands of an elective chief magistrate and senate. I trust, however, that, should the controversy revive, our representatives may feel themselves, maugre Chancellor Kent, free to be at least as democratic as the British commons. It is noticeable that the precedent of a parliamentary stand against a treaty was made during the ministry of Pitt, almost contemporaneously with Jay's; and that while on this side of the Atlantic the popular resistance triumphed, by leading to the withdrawal and abandonment of the measure, on our side, notwithstanding an agitation alike universal and violent, we were compelled to swallow, pure and undiluted, the strong concoction of the venerable chief justice." Dallas's Letters from London, II. 208. Mr. Todd, in his valuable work on Parliamentary Government in England, I. 610, states the rule as follows: "The constitutional power appertaining to parliament in respect to treaties is limited. It does not require their formal sanction or ratification by parliament, as a condition of their validity. The proper jurisdiction of parliament in such matters may be thus defined: First, it has the right to give or withhold its sanction to those parts of a treaty that require a legislative enactment to give it force and effect, as, for example, when it provides for an alteration in the criminal or municipal law, or proposes to change existing tariffs or commercial regulations. Secondly, either house has the right to express to the crown, by means of an address, its opinion in regard to any treaty or part of a treaty that has been laid before parliament. Thirdly, it is in the power of either house, if it disapproves of a convention or treaty, to visit the ministers of the crown who are responsible for the same with censure or impeachment, as the case may be. "If a treaty requires legislative action, in order to carry it out, it should be sub arises the duty of courts of justice to declare any unconstitutional law passed by Congress or by a State legislature void. So, in like manner, the same duty arises whenever any other department of the national or State governments exceeds its constitutional functions. But the judiciary of the United States has no general jurisdiction to declare acts of the several States void, unless they are repugnant to the Constitution of the United States, notwithstanding they are repugnant to the State constitution.2 Such a power belongs to it only when it sits to administer the local law of a State, and acts exactly as a State tribunal is bound to act.3 But upon this subject it seems unnecessary to dwell, since the right of all courts, State as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy.4 4. jected to the fullest discussion in parliament, and especially in the house of commons, with a view to enable the government to promote effectually the important interests at stake, in their proposed alterations in the foreign policy of the nation. But while parliament may refuse to agree to measures submitted to them for the purpose of giving effect to any treaty, they have no power to change or modify, in any way, a treaty itself." Very much may be said on both sides of this question; but if the house, which, under the Constitution, is to originate appropriations, is under a moral obligation to pass acts to carry into effect all treaties, it is easy to conceive of cases in which the President and senate, by agreeing in treaties to appropriations which ought to be made in the ordinary way, may encroach seriously upon the power of the house. Though a treaty is the "law of the land," it is as much subject to repeal as any legislative act, and a subsequent act of Congress conflicting with it has the effect to repeal it pro tanto. Taylor v. Morton, 2 Curt. C. C. 454; Ropes v. Church, 8 Blatch. 304; Gray v. Clinton Bridge, 1 Woolw. 150; United States v. Tobacco Factory, 11 Wall. 264.1 1 Marbury v. Madison, 1 Cranch, 137, 176. 2 Calder v. Bull, 3 Dall. R. 386. 3 Satterlee v. Matthewson, 2 Peters's Sup. R. 380, 413. 4 See Serg. on Const. ch. 33, p. 391 (2d edit. ch. 34, p. 401); 1 Kent's Comm. Lect. 20, p. 420, 421 (2d edit. p. 448, 449, 450). CHAPTER XLIII OATHS OF OFFICE RELIGIOUS TEST RATIFICATION OF CONSTITU § 1843. THE next clause is, "The senators and representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support the Constitution. But no religious test shall ever be required as a qualification to any office or public trust under the United States." § 1844. That all those who are intrusted with the execution of the powers of the national government should be bound by some solemn obligation to the due execution of the trusts reposed in them and to support the Constitution, would seem to be a proposition too clear to render any reasoning necessary in support of it. It results from the plain right of society to require some guaranty from every officer that he will be conscientious in the discharge of his duty. Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those who feel a deep sense of accountability to a Supreme Being. If, in the ordinary administration of justice in cases of private rights or personal claims, oaths are required of those who try as well as of those who give testimony to guard against malice, falsehood, and evasion, surely like guards ought to be interposed in the administration of high public trusts, and especially in such as may concern the welfare and safety of the whole community. But there are known denominations of men who are conscientiously scrupulous of taking oaths (among which is that pure and distinguished sect of Christians, commonly called Friends or Quakers), and there 1 This clause, requiring an oath of the State and national functionaries to support the Constitution, was at first carried by a vote of six States against five; but it was afterwards unanimously approved. Journal of Convention, p. 114, 197. On the final vote it was adopted by a vote of eight States against one, two being divided. Id. 313. The clause respecting a religious test was unanimously adopted. Id. 313. fore, to prevent any unjustifiable exclusion from office, the Constitution has permitted a solemn affirmation to be made instead of an oath, and as its equivalent. § 1845. But it may not appear to all persons quite so clear why the officers of the State governments should be equally bound to take a like oath or affirmation; and it has been even suggested that there is no more reason to require that than to require that all of the United States officers should take an oath or affirmation to support the State constitutions. A moment's reflection will show sufficient reasons for the requisition of it in the one case, and the omission of it in the other. The members and officers of the national government have no agency in carrying into effect the State constitutions. The members and officers of the State governments have an essential agency in giving effect to the national constitution. The election of the President and the senate will depend in all cases upon the legislatures of the several States; and, in many cases, the election of the house of representatives may be affected by their agency. The judges of the State courts will frequently be called upon to decide upon the Constitution and laws and treaties of the United States, and upon rights and claims growing out of them. Decisions ought to be, as far as possible, uniform; and uniformity of obligation will greatly tend to such a result. The executive authority of the several States may be often called upon to exert powers or allow rights given by the Constitution, as in filling vacancies in the senate during the recess of the legislature; in issuing writs of election to fill vacancies in the house of representatives; in officering the militia, and giving effect to laws for calling them; and in the surrender of fugitives from justice. These and many other functions devolving on the State authorities render it highly important that they should be under a solemn obligation to obey the Constitution. In common sense, there can be no well-founded objection to it. There may be serious evils growing out of an opposite course.1 One of the objections taken to the articles of confederation by an enlightened State (New Jersey) was, that no oath was required of members of Congress previous to their admission to their seats in Congress. The laws and usages of all civilized nations (said that State) evince the propriety of an 1 The Federalist, No. 44; 1 Tuck. Black. Comm. App. 370, 371; Rawle on Const. ch. 19, p. 191, 192. oath on such occasions; and the more solemn and important the deposit, the more strong and explicit ought the obligation to be.1 § 1846. As soon as the Constitution went into operation, Congress passed an act,2 prescribing the time and manner of taking the oath, or affirmation, thus required, as well by officers of the several States as of the United States. On that occasion, some scruple seems to have been entertained by a few members of the constitutional authority of Congress to pass such an act. But it was approved without much opposition. At this day, the point would be generally deemed beyond the reach of any reasonable doubt.4 A § 1847. The remaining part of the clause declares, that "no religious test shall ever be required as a qualification to any office or public trust under the United States." This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons who feel an invincible repugnance to any religious test or affirmation. It had a higher object, to cut off forever every pretence of any alliance between church and state in the national government. The framers of the Constitution were fully sensible of the dangers from this source marked out in the history of other ages and countries, and not wholly unknown to our own. They knew that bigotry was unceasingly vigilant in its stratagems to secure to itself an exclusive ascendancy over the human mind, and that intolerance was ever ready to arm itself with all the terrors of the civil power to exterminate those who doubted its dogmas or resisted its infallibility. The Catholic and the Protestant had alternately waged the most ferocious and unrelenting warfare on each other; and Protestantism itself, at the very moment that it was proclaiming the right of private judgment, prescribed boundaries to that right, beyond which if any one dared to pass he must seal his rashness with the blood of martyrdom.5 The history of the parent country, too, could not fail to instruct them in the uses and the abuses of religious tests. They there found the pains and penalties of non-conformity written in no 1 2 Pitk. Hist. 22; 1 Secret Journal of Congress, June 25, 1778, p. 374. 2 Act of 1st June, 1789, ch. 1. 3 Lloyd's Debates, 218 to 225; 4 Elliot's Debates, 139 to 141. * See also M'Culloch v. Maryland, 4 Wheat. R. 415, 416. 5 See 4 Black. Comm. 44, 53, and ante, vol. i. § 53. |