ther the Constitution, laws, nor treaties, would have been of any avail originally, without Congress; and even now the wheels of government would speedily stop, without the frequent renewal of legislative appliances.

§ 234. Over and above everybody else, who are undoubtedly bound by the laws, State Judges in particular are said to be specially bound thereby; because they are not only to obey, but it is their official business to administer and execute, the laws of the land. Congress have never undertaken to carry this provision into execution, otherwise than by providing for a revision of their proceedings in certain cases; but he would be a bold legislator who should assert that this was the end of all the power of Congress for carrying into execution this provision of the Constitution. So the last clause of the section authorizes all Judges and all people to treat as nugatory and void any State constitututions or laws contrary to any part of the supreme law of the land. But it is not thence to be inferred, that no further laws for carrying it into execution would be necessary and proper, if the opinion of Congress should lead them to a different result.

235. The 3d and last section of this Article VI., requiring all officers, State and national, to be bound by oath to support the Constitution, has been already sufficiently remarked upon. Legislation, though not authorized on its face,

was first used on this section, and has remained in full force ever since.

§ 236. "The ratification of the conventions1 of nine States shall be sufficient for the establishment of this Constitution, between the States so ratifying the same." The Constitution was ratified by all the States; but without legislation it was a mere dead letter, and would so have remained to this day. Yet the Article on its face neither authorizes nor requires any. All the powers of legislation necessary to vivify and carry into execution the Constitution, and all the powers of the government, as well as the particular provisions of the preceding sections, already commented on, must be found, and were found, in other parts of the Constitution. If they had not been, the Constitution never could have gone into operation at all, much less could it have been successfully administered and practised upon, as it has been, for more than three quarters of a century.

1 Article VII.

CHAPTER XVII.

LEGISLATIVE POWERS.- SPECIAL.

§ 237. IN further explanation of the extent of the legislative power of the government, though not in addition to it, the Constitution mentions many subjects particularly, to which the attention of Congress is specially called, and in regard to which their action is directly invoked. It also contains some qualifications and restrictions of that power. These will next be noticed in their order; and such of them as may be thought to invite particular attention, will receive it. The first of these special powers relates to the census.1 "The enumeration [of the people] shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct."

§ 238. This power is legislative; for it is to be executed by law," that is, by making a law. It also relates to several of the avowed purposes

1 Article I., section 2.

of the people in the establishment of the Constitution. It has a direct bearing upon the "perfection of the Union," by its influence on the equalization of the representation of the people. "Justice" and "tranquillity" are affected in the same way. The "common defence" and "general welfare" may be promoted by ascertaining the strength and distribution of the physical force of the nation. In executing this provision, Congress have wisely included in the census much useful information, besides the mere enumeration of the people. But, in the simple enumeration, several matters of more or less importance, not specifically provided for in the Constitution, might well be settled by law.

§ 239. The apportionment of Representatives and direct taxes is to be predicated upon it. It is therefore important to know on what principles it is made. By the Constitution, it must include all persons; for "the whole number of free persons, . . . and . . . all other persons," are all persons. Yet not absolutely; for "Indians not taxed" are expressly excluded. Who are they? All the descendants of the Indian natives, who adopt our civilization, live in the midst of our people, and subject to the duties of our laws? Those who live in the same manner, but having nothing to be taxed for, and nothing to pay taxes with, are not taxed? Or those who, living in their own tribes, separate from our people, governed by their own usages and customs,

and not participating in our civilization, or in our jurisprudence? Again, from what are they excluded? From the enumeration altogether, or only from the first class, who are counted as units?

§ 240. But there may be other exclusions. "All persons" does not really, in this place, mean everybody, without regard to any thing but their humanity and personality. They must bear some relation to the State in which they are enumerated. What is this? Must they be actually in the State at the time?. Must they have a home, domicile, or permanent residence in the State, whether there or not personally? Must they be members of the State, have the franchise ; or may they be foreigners, and without right? If aliens, friends or enemies?

Must they be counted as units or fractions? Be free,-entitled to the freedom of the country, -in distinction from foreigners, in distinction from bondsmen, or in distinction from slaves? If such questions are not settled by law, they must be settled practically by the officer who takes the census in every parish, and may have as many different decisions as there are such officers.

§ 241. At this moment [1864] how many members of Congress owe their seats to the enumeration of traitorous citizens and foreign cnemies; how many to aliens, every white one being a unit, and every black only three-fifths of one? If persons in the service of the gov