The last amendment ratified-the 15th-was not submitted to the President for his signature. It is somewhat singular that there should have existed in the legislative branch of the Government a disposition to raise the question after the decision of the Supreme Court in Hollingsworth et al. v. Virginia. That decision clearly settled. the question and the vote in the Senate in 1803 and again in 1865, not to send the amendment to the President was an affirmance by the Senate of that decision. So this action by the Senate, together with the fact that neither of the last two amendments was submitted to the President, and the 13th only by an act declared to be an inadvertence, may fairly be regarded as finally settling the question that submission is not necessary.

66

until after the admission of such loyal Senators and Representatives of the now unrepresented States as have been or as may hereafter be chosen in conformity with the Constitution and laws of the United States.

"Washington, D. C., June 22, 1866."

"Andrew Johnson.

66 As to the way in which the Constitution should be amended Mr. Madison expressed his preference in a letter to Mr. George Eve, on January 2, 1789:

"I have intimated that the amendments ought to be proposed by the Congress. I prefer this mode to that of a General Convention1st. Because it is the most expeditious mode. A convention must be delayed until two-thirds of the State legislatures shall have applied for one, and afterwards the amendments must be submitted to the States. 2ndly. Because it is the most certain mode. There are not a few States who will absolutely reject the proposal of a Convention, and yet not be averse to amendments in the other mode. Lastly. It is the safest mode. The Congress, who will be appointed to execute as well as to amend the Government, will probably be careful not to destroy or endanger it. A Convention, on the other hand, meeting in the present ferment of parties, and containing, perhaps, insidious characters from different parts of America, would at least spread a general alarm, and be but too likely to turn everything into confusion and uncertainty. It is to be observed, however, that the question concerning a General Convention will not belong to the federal Legisla ture. If two-thirds of the States apply for one, Congress cannot refuse to call it; if not, the other mode of amendments must be pursued." Writings of Madison, vol. 1, 448.

CHAPTER XLIX.

PRIOR DEBTS AND ENGAGEMENTS-SUPREME LAW OF THE LANDOATH OF OFFICERS-RELIGIOUS TEST-RATIFICATION.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This clause was proposed by Governor Randolph. It was suggested by the 12th article of the Articles of Confederation which read as follows:

"All bills of credit emitted, moneys borrowed, and debts contracted by or under the authority of Congress, before the assembling of the United States, in pursuance of the present Confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the United States and the public faith are hereby solemnly pledged."

The Committee of the Whole recommended to the Convention as its 15th resolution, "that provision ought to be made for the continuance of Congress and their authorities and privileges, until a given day, after the reform of the Articles of Union shall be adopted, and for the completion of all other engagements." This was substantially taken from a resolution found in Mr. Randolph's plan for a constitution. When the resolution came up in the Convention, Mr. Gouverneur Morris suggested it might be well to omit the assumption of the engagements, and also that Congress ought not to be continued until all the States should adopt the reform. After a short debate on the question the resolution was lost.

Later in the Convention Mr. Rutledge moved that a Grand Committee be appointed to consider the necessity and expediency of the United States assuming all the State debts, and suggested in support of his resolution that the 1 Journal, 551.

assumption by the General Government in favor of the State debts would be just, first, because such debts were contracted in the common defense, and second, because, as the taxes on imports, which were the only sure source of revenue, were to be given by the States to the General Government, it would be necessary for the Government to assume the debts of the States. He said it would be politic to do so, as only such conduct on the part of the General Government would conciliate the people to the Constitution.

Mr. Rutledge's motion for the appointment of such a committee was carried by a vote of 6 to 4.2

Mr. Livingston reported for this committee on August 21 as follows:

"The Legislature of the United States shall have power to fulfill the engagements which have been entered into by Congress, and to discharge, as well the debts of the United States, as the debts incurred by the several States, during the late war, for the common defense and general welfare. ''

During the discussion on this report Mr. Gouverneur Morris moved as a substitute: "The Legislature shall discharge the debts, and fulfill the engagements of the United States," and this was unanimously agreed to.

Mr. Mason objected to the term, "fulfill the engagements and discharge the debts," as too strong an expression, and made a short argument in support of his position. Mr. Randolph moved as a substitute for the pending provision the following: "All debts contracted, and engagements entered into, by or under the authority of Congress, shall be as valid against the United States under this Constitution as under the Confederation.' "This motion was carried by a vote of ten to one, Pennsylvania being the only State voting against it. In this form the resolution went to the Committee on Style, and was there changed by omitting the words, "by or under the authority of Congress," and inserting in their stead, "before the adoption of this Con

2 The committee consisted of Messrs. Langdon, King, Sherman, Livingston, Clymer, Dickinson, McHenry, Mason, Williamson, C. C. Pinckney, and Baldwin. Journal, 553.

3 Journal, 568, 569.

4 Journal, 607.

stitution." As thus modified by the Committee on Style it was inserted in the Constitution.

Commenting on this clause, Mr. Madison said:

"This can only be considered as a declaratory proposition; and may have been inserted, among other reasons for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine that a change in the political form of civil society has the magical dissolving of its moral obligations.

"Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been inserted in favor of the United States as well as against them; and in the spirit which was characterized by little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told what few others need to be informed of, that, as engagements are in their nature reciprocal, an assertion of their validity on one side necessarily involves a validity on the other side; and that, as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every constitution must limit its precautions, to dangers that are not altogether imaginary; and that no real danger can exist that the Government would dare, with, or even without this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned."'5

The insertion of this clause in the Constitution showed the good faith and conscientious purpose of the framers of that instrument. It was not a resolution of some convention, or of some State Assembly, or even of Congress, but it was the deliberate judgment of the Convention which framed the Federal Constitution, that the national debts contracted, and engagements entered into, prior to the adoption of the Constitution, should be as valid against the United States as they were under the Confederation. It is one of the most notable declarations in the whole Constitution. An effort was made by those who were indebted to the British Government to show that the

5 The Federalist, No. 43.

Revolution had dissolved all contracts, and released all. such debtors from their obligations, but the adoption of this clause determined otherwise.

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, any Thing in the Constitution or Laws of Any State to the Contrary notwithstanding.

It is probable that Mr. Rutledge was the author of this clause, though it has been attributed to Luther Martin. Anticipating that a clause of this character would be inserted in the Constitution, Mr. Pinckney in his plan had this provision:

"All acts made by the Legislature of the United States, pursuant to this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the land; and all judges shall be bound to consider them as such in their decisions.""

A stronger provision is found in the following, taken from the plan submitted by Mr. Paterson:

"All 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, so far forth as those acts or treaties shall relate to the said States or their citizens; and that the Judiciary of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding; and that if any State, or any body of men in any State, shall oppose or prevent the carrying into execution such acts or treaties, the Federal Executive shall be authorized to call forth the power of the Confederated States, or so much thereof as may be nec• Landon's Constitutional History of the United States, 97

7 Journal, 69.