Stephens, Constitutional View, Colloquy 1

COLLOQUY I.

MR. STEPHENS'S UNION SPEECH OF 1860 THE SUBJECT ON WHICH THE DISCUSSION BEGINS — THE MOST THOROUGH DEVOTION TO THE UNION CONSISTENT WITH THE RECOGNISED SOVEREIGNTY OF THE SEVERAL STATES — THE UNION ITSELF IS A UNION OF SOVEREIGN STATES — THE WHOLE SUBJECT OF THE WAR, ITS CAUSES, NATURE, AND CHARACTER, OPENED UP BY A QUESTION PROPOUNDED, HOW MR. STEPHENS WITH HIS SENSE OF DUTY COULD GO WITH HIS STATE ON SECESSION AGAINST THE UNION — BEFORE GOING INTO A FULL ANSWER TO THIS QUESTION, TWO PRELIMINARY OBSERVATIONS MADE, ONE RELATING TO CITIZENSHIP, THE OTHER TO THE SUPREME LAW OF THE LAND — CITIZENSHIP PERTAINS TO THE STATES — OBEDIENCE IS DUE TO THE SUPREME LAW WHILE IT IS LAW, BUT ALLEGIANCE IS DUE TO THE PARAMOUNT AUTHORITY — OBEDIENCE TO LAW WHILE IT IS LAW, AND ALLEGIANCE WHICH IS DUE TO THE PARAMOUNT AUTHORITY WHICH CAN RIGHTFULLY MAKE AND UNMAKE ALL LAWS, CONSTITUTIONS AS WELL AS OTHERS, ARE VERY DIFFERENT THINGS — THE QUESTION PROPOUNDED REQUIRES A THOROUGH INQUIRY AS TO WHERE, UNDER OUR SYSTEM, THIS PARAMOUNT AUTHORITY RESIDES.

JUDGE BYNUM. We were all at the North very much surprised as well as disappointed, Mr. Stephens, at your course on Secession.

MR. STEPHENS. Why so?

JUDGE BYNUM. Because we were led to believe, from your speech against that measure on the 14th of November, 1860, before the Legislature of your State in Milledgeville, that you were really and thoroughly for the Union. We regarded your speech on that occasion as one of the best Union speeches ever made. There was a tone of earnestness and sincerity in it which created that impression. It was published in all our leading papers, and was almost literally spread broadcast throughout the whole country. From that speech especially, as well as from your course in 1859 — and indeed from your whole course from the time, you entered public life — we thought that, when the crisis came, if it ever should come, you would certainly go for the Union.

MR. STEPHENS. It is quite as surprising to me that any such conclusion touching my course, in case Secession should be resorted to, should have been drawn from the speech you allude to, or from my course in 1850, or from any act of my life, as you say my actual course was to you when the event occurred. I was indeed thoroughly for the Union. This the speech referred to fully attested, as well as my whole public course. No words were ever uttered with more earnestness or greater sincerity than were the words of that speech. No stronger or more ardent Union man ever lived than I was. Not a man in the Convention which framed the Constitution of the United States, which sets forth the terms of "the Union," was or could have been more devoted to it than I was. But what Union? or the Union of what? Of course, the Union of the States under the Constitution. That was what I was so ardently devoted to. The Union is a phrase often used, I apprehend, without considering its correct import or meaning. By many it is used to signify the integrity of the country as it is called, or the unity of the whole people of the United States, in a geographical view, as one Nation.

JUDGE BYNUM. Certainly; that is what I mean by it.

MR. STEPHENS. Well, allow me then to say that there never was in this country any such union as you speak of; there never was any political union between the people of the several States of the United States, except such as resulted indirectly from the terms of agreement or Compact entered into by separate and distinct political bodies. The first Union so formed, from which the present Union arose, was that of the Colonies in 1774. They were thirteen in number. These were distinct and separate political organizations or bodies. After that the Union of States was formed under the Articles of Confederation, in 1777; and then, the modifications of the terms of this Union by the new Compact of 1787, known as the present Constitution. To this last Union, at first, only eleven of the original thirteen States became parties. Afterwards the other two (North Carolina and Rhode Island) also acceded and became members. The last of these (Rhode Island) rejoined her former associates in 1790. Subsequently, twenty new members were admitted into the association, on an equal footing with those first forming it. Whatever intimate relationships, therefore, existed between the citizens of the respective thirty-three States constituting the Union in 1860, they were created by, or sprung from, the terms of the Compact of 1787, by which the original States as States were united. These terms were properly called the Constitution of the United States; not the Constitution of one people as one society or one nation, but the Constitution of a number of separate and distinct peoples, or political bodies, known as States. The absolute Sovereignty of these original States, respectively, was never parted with by them in that or any other Compact of Union ever entered into by them. This at least was my view of the subject. Georgia was one of these States. My allegiance therefore was, as I considered it, not due to the United States, or to the people of the United States, but to Georgia in her Sovereign capacity. Georgia had never parted with her right to command the ultimate allegiance of her citizens. In that very speech this doctrine, or these principles, were clearly asserted and distinctly maintained. However strongly opposed I was to the policy of Secession, or whatever views I gave against it as a policy, or wise measure) yet in that very speech, which you considered so strong a Union speech, I declared my convictions to be, that if the people of Georgia, in their majesty, and in the exercise of their resumed full Sovereignty, should, in a regularly constituted Convention called for that purpose, withdraw from the Compact of Union, by which she was confederated, or united, with the other States under the Constitution, that it would be my duty to obey her high behest. That speech was made mainly, it is true, against the policy of Secession for then existing grievances complained of, but also against the unconstitutionality of measures proposed to be passed by the State Legislature, with a view of dissolving the Union. The Sovereign power of the people of the State, which alone could regulate its relations with the other States, was not vested in the Legislature. That resided with the people of the State. It had never been delegated either to the State authorities, or the authorities created by the Articles of Union. It could be exercised only by the people of the State in a regularly-constituted Convention, embodying the real Sovereignty of the State — just such Convention as had agreed to and adopted the Constitution of the United States. It required the same power to unmake as it had to make it.* Hence, I said — "Let the sovereignty of the people of Georgia be first heard on this question of severing the bonds that united them with the other States;" and that, whatever decision the State might thus and then make, "my fortunes would be cast with hers and her people."


* "Unum quoque dissolutur eo modo quo colligatur" — "Every thing is dissolved by the same means it is constituted." — Noy's Maxims, p. 11

Or, as the Institutes and Broom have it — "Nihil tam conveniens est naturali æquetati quam unum quoque dissolvi eo ligamene quo ligatum est" — " Nothing is so consonant to natural equity as that every contract should be dissolved by the same means that rendered it binding." — Broom's Legal Maxims, p. 407; 2 Inst. 360.


I indulged a strong hope that when the Sovereignty of the people should be so invoked that it would take the same view I did of the policy of Secession or Disunion. In this hope, however, I was disappointed. The Convention was called; it was regularly and legally assembled; the Sovereign will of the State, when expressed through its properly constituted organ, was for Secession, or a withdrawal of the State from the Union. The Convention passed an Ordinance repealing and rescinding the State Ordinance of the second of January, 1788, by which Georgia became one of the United States under the constitutional Compact of 1787. I was in this Secession Convention, which assembled on the sixteenth day of January, 1861. The rescinding Ordinance passed that body on the nineteenth day of that month; I voted against that Ordinance. It was an Ordinance repealing and rescinding the Ordinance of a similar Sovereign Convention of the people of the State, passed the second day of January, 1788, as before stated, and placed Georgia just where she was, or would have been, if her Convention in 1788 had not passed the Ordinance by which she acceded to, the Union under the Constitution of 1787. Such were my convictions.

After the passage of this Ordinance by the State Convention on the nineteenth day of January, 1861, withdrawing from the Union, I obeyed the high and Sovereign behest of my State, as I felt bound in duty and patriotism to do, and as I had on all occasions declared that I should do. My position, in that Convention and after, was the same that it would have been if I had been in the State Convention of 1788. Had I been in that Convention, I should have been warmly in favor of Georgia's entering into the Union under the Constitution; but it she had decided otherwise, I should, as a good citizen, have felt myself bound to obey her Sovereign will.

This is a short statement of that matter, and how you, or any person who read that speech, could have drawn any other inference as to what my course would be, in case the people of Georgia, in Sovereign Convention, should determine to Secede, I cannot well imagine, but upon the supposition that I did not mean what I said.

Moreover, however general the surprise and disappointment you speak of, may have been at the North, as to my course, yet it certainly was not universal; for Mr. Greeley, in his American Conflict, very clearly shows that he was not either surprised or disappointed at my course from any thing expressed in that speech. After quoting with commendation several extracts from it, he says: "This was frank and noble, yet there was a' dead fly in the ointment' which sadly marred its perfume. That was a distinct avowal of the right of the State to overrule his own personal convictions and to plunge him into treason to the Nation."*

* American Conflict, vol. i, page 343.

However Mr. Greeley and I may differ as to what constitutes treason, and as to what he is pleased to call "the Nation," this shows conclusively that he at least was clearly and fully apprized of my position in case the State of Georgia should Secede, even against my earnest entreaty and utmost exertions in opposition to the measure.

JUDGE BYNUM. That part of the speech, I must confess, escaped me; at least it was lost in the deep impression which the fervid appeals for the Union in other parts made upon my mind.

MAJOR HEISTER. I recollect that part of the speech well, but I could not well reconcile it with your speech in the Secession Convention of Georgia, in January, 1861, in which you characterized Secession as the "height of madness, folly and wickedness, that could never get either your vote or sanction."

MR. STEPHENS. I am not surprised at your difficulty in this respect. The ready solution to it, however, is this: no such speech as that you quote from was ever made by me. I did regard Secession as an unwise measure, but never questioned its Rightfulness. I thought the State had ample cause to justify her in Seceding, but I thought that a redress of her wrongs might be better secured by another line of policy.

MAJOR HEISTER. Why, the speech is in Lossing's History* of the War, and in the Rebellion, by Botts.†

* The Civil War in America, by Lossing, vol. i, page 57.

The Great Rebellion, by John M. Botts, page 326

MR. STEPHENS. I know that. I have read it in both; it may be in many other similar works, but it is an entire fabrication from beginning to end. No such speech was ever made by me in that Convention or anywhere else; I made but one speech on the subject in that Convention, which was extensively published in the newspapers of the day, and can be seen in the volume of my speeches which has been recently published. This speech was against the policy of Secession, as the one before the Legislature in November was; but it expressed the same sentiments as the other, touching my course in case the State should go against my judgment. It had the same "dead fly in the ointment," as Mr. Greeley would express it. Other speeches I see attributed to me in Mr. Lossing's, as well as in several other Histories of the War, which are as groundless as this. Of this class are those quoted from by Mr. Lossing, representing me as raising the cry of "onto Washington,"* in April, 1861. No such sentiments were ever uttered by me, as are given in these reported speeches. This shows what kind of materials histories are sometimes made of.

* The Civil War in America, by Lossing, vol i, pages 379, 382.

JUDGE BYNUM. But, Mr. Stephens, allow me to ask you, how you could reconcile it with your sense of duty, to go with your State against the Union, or against the Constitution, which you admit was the foundation of the union of the States, and which, on its face, is declared to be the supreme law of the land? How could you consider what you style your ultimate allegiance as due to your State and not to the United States? You were a citizen of the United States; allegiance and citizenship go together; they cannot be separated. Allegiance and Paramount authority, it seems to me, necessarily go together under our institutions. The first follows the latter, as a matter of course. Pardon me, therefore, for asking you, if you will not consider it obtrusive or impertinent, how you could possibly do otherwise than consider, not only your ultimate, but present and ever absolute allegiance due to the General Government, when there was a combination to overthrow it, and which you declared, in your speech of November 14th, 1860, to be, in your opinion, the best Government in the world? Was not your allegiance due to that Government?

MR. STEPHENS. By no means. Allegiance, as we understand that term, is due to no Government. It is due the power that can rightfully make or change Governments. This is what is meant by the Paramount authority, or Sovereignty. Allegiance and Paramount authority do go together; we agree in that. But there is a great difference between the supreme law of the land and the Paramount authority, in our system of government, as well as in all others. Obedience is due to the one, while allegiance is due to the other. Obedience to law, while it is law, or the Constitution, which is an organic law for the time being, and allegiance to the Paramount authority, which can set aside all existing laws, fundamental laws Constitutions, as well as any others, are very different things.

Your question, however, my dear sir, opens up the whole subject of the late war, its causes, nature, and character. It involves all the questions of right and wrong, in its beginning, conduct, and conclusion. This, too, necessarily involves an inquiry into and a correct understanding of the nature of the Government of the United States; the relations of the States to it; and the nature and character of that Union of which we have spoken, and about which we often hear so much. In a word, it involves a solution of the great question, where the Paramount authority or ultimate Sovereignty, under our system of Government, resides. If these matters had been properly discussed, and properly understood, and settled by reason, in accordance with truth and justice, before a resort to arms was had, our once happy and prosperous country would have been saved the widespread desolation that now broods over so large a section of it, and the far greater evils which I seriously apprehend still threaten the whole of it. The million of lives that were sacrificed in this fratricidal strife, and the billions of treasure that were expended in it, as well as the untold suffering which attended it, would have been saved.

We have many Histories of this war, which, from the bench of the Supreme Court of the United States, has been pronounced to be "the greatest civil war known in the history of the human race,"* and "the din of conflict" in which, says Mr. Lossing, the author of one of these Histories, "was heard all over the world; and people of all nations were spectators of the scene!"†

* 2d Black's Reports, 669.

Lossing, vol. i, p. 3.

Most of these Histories, that I have read, treat mainly of the current, or passing events, preceding and during its continuance. They are but the records and chronicles, and imperfect ones too, of the excited passions, imbittered prejudices, and extravagant utterances, of the public men, as well as of the masses of the people on both sides. Their most entertaining parts are chiefly devoted to a portrayal of the terrible Conflict of arms, scenes of battlefields, the marshalling of hosts in hostile array, the skill of Generals, and deeds of valor and prowess on one or the other, or both sides, which excite the highest admiration with those who take pleasure in such descriptions; but none of them have taken any thing like an unimpassioned and Philosophical view of the real causes of this great scourge; or how it might have been and ought to have been prevented, or how like results and calamities, under like circumstances, may hereafter be avoided.

The only exceptions to this remark of all the works of the kind, that I have seen, are, "A Youth's History of the Great Civil War," published by Van Evrie, Horton & Co., New York, and a work entitled, "The Origin of the late War," by Mr. George Lunt, of Boston.* Mr. Lunt has treated his subject with great truthfulness and rare ability; but still he does not go quite to the bottom of the subject. He does not go into an inquiry into the nature of the Government of the United States, and, the character of the Union, by which the States were united. Herein alone can be discovered the remote, but real causes of the war. Such an inquiry did not lie, it seems, within the scope of his object. The Youth's History barely glances at what I allude to. There has been as yet, as far as I have seen, no history entering into an exposition of those great fundamental laws, governing our complicated system of political organization, from a violation of which, all these troubles resulted. Resulted as inevitable consequences: just as the most malignant diseases often do, from a neglect or violation of the vital laws of physical organism. From such an investigation and exposition alone, can be known the nature and character of the war itself, and on which side the right or wrong attending it, or the right or wrong of the conduct of any of the actors in it, is to be placed for the enlightenment of mankind, and the benefit of posterity. We have books upon books about "Negro Slavery," "The Slave Power," "Slave Drivers," and about "An Oligarchy of Slave Holders," etc., but none of them attempt to show that these subjects, even according to their fancies, came within the purview of the powers of the General Government.


* Since the preparation of these sheets for the press, the writer has seen, for the first time, a copy of the first volume of "The Civil War in America, by John W. Draper, M. D., LL. D., of the University of New York." This, perhaps, should be also excepted from the remarks of the text. There is a very profound philosophy running through this book, somewhat of the Buckle School; but its philosophy, as to the causes of the war, is very well condensed, by the author himself, in one sentence, on page 25. That sentence is in these words: "There is a political force in ideas which silently renders protestations, promises, and guarantees, no matter in what good faith they may have been given, of no avail, and which makes Constitutions obsolete. Against the uncontrollable growth of the anti-slavery idea the South was forced to contend."

This kind of Philosophy accounts for the war, as it might very readily account for most of the evils which afflict mankind, by simply assigning it and them to the general depravity of human nature.

This is the Philosophy of Fatalism — which assigns consequences to antecedents, over neither of which human will has any control; and for either of which it would be difficult to assign any just responsibility or accountability. A better and sounder philosophy is that which teaches men their errors, and which, by inculcating sound and correct principles, enables those who study it, in the exercise of virtue, to become wiser, truer, and better, politically as well as morally.


Mr. Greeley, one of the ablest and fairest writers of the class I have alluded to, in his "American Conflict," treats the whole war as the culmination of a strife, for more than half a century, about "Negro Slavery," with scarcely a passing word upon the subject of the nature of the Government of the United States, or attempting to show that it had any rightful authority whatever over the subject matter of this strife. He writes as if it were conceded that the United States is one great Nation, one people, divided in sentiment upon the subject of African Slavery, or the legal status of the African race in some of the States.: He traces and treats the discussion of this question just as a British historian might treat the discussions on the Corn Laws, or the extension of the franchise in his country. All this manner of treating the subject is radically defective. It utterly ignores the true causes of the war, on which alone its. Rightfulness depends. Slavery, so called, or that legal subordination of the black race to the white, which existed in all but one of the States, when the Union was formed, and in fifteen of them when the war began, was unquestionably the occasion of the war, the main exciting proximate cause on both sides, on the one as well as the other, but it was not the real cause, the "Causa causans" of it. That was the assumption on the part of the Federal authorities, that the people of the several States were, as you say, citizens of the United States, and owed allegiance to the Federal Government, as the absolute Sovereign power over the whole country, consolidated into one Nation. The war sprung from the very idea you have expressed, and from the doctrine embraced in the question propounded to me. It grew out of different and directly opposite views as to the nature of the Government of the United States, and where, under our system, ultimate Sovereign power or Paramount authority properly resides.

Considerations connected with the legal status of the Black race in the Southern States, and the position of several of the Northern States toward it, together with the known sentiments and principles of those just elected to the two highest offices of the Federal Government (Messrs. Lincoln and Hamlin), as to the powers of that Government over this subject, and others which threatened, as was supposed, all their vital interests, prompted the Southern States to withdraw from the Union, for the very reason that had induced them at first to enter into it: that is, for their own better protection and security. Those who had the control of the Administration of the Federal Government, denied this right to withdraw or secede. The war was inaugurated and waged by those at the head of the Federal Government, against these States, or the people of these States, to prevent their withdrawal from the Union. On the part of these States, which had allied themselves in a common cause, it was maintained and carried on purely in defence of this great Right, claimed by them, of State Sovereignty and Self-government, which they with their associates had achieved in their common struggle with Great Britain, under the Declaration of 1776, and which, in their judgment, lay at the foundation of the whole structure of American free Institutions.

This is a succinct statement of the issue, and when the calm and enlightened judgment of mankind, after the passions of the day shall have passed off, and shall be buried with the many gallant and' noble- spirited men, who fell on both sides in the gigantic struggle which ensued, shall be pronounced, as it will be, upon the right or wrong of the mighty contest, it must be rendered in favor of the one side or the other, not according to results, but according to the right in the issue thus presented.

I should take pleasure, though a melancholy pleasure it would be, in giving you my views in full on this subject, if it would be agreeable to you and the other gentlemen present. Not so much, however, with a view to a personal vindication, as with a view to the vindication of the truth of History. But, in doing so, I think I should be able to make it appear very clearly to you why I acted as I did in going with my State, as I did. At least I am not at all averse to giving "the reason of the faith that is in" me, which thoroughly impresses me with the conviction not only of the correctness of my own course, but, also, of the Rightfulness in itself, or Justifiableness on the part of the State in the adoption of a policy that I did not approve; and that if the History of this most lamentable and disastrous conflict, disastrous I fear to all the great principles of Self-government, established or attempted to be secured by the Constitution of the United States, shall ever be written, the Right and Justice of the cause will be found to be on the side of those with whom my fortunes were cast, and with whom, in all their heroic struggles and unparalleled sacrifices, my feelings and sympathies were ever thoroughly enlisted, and my utmost exertions put forth for their success. Whatever errors in policy they may have committed, either in the inception of the difficulties or in their subsequent management, the real object of those who resorted to Secession, as well as those who sustained it, was not to overthrow the Government of the United States; but to perpetuate the principles upon which it was founded. The object in quitting the Union was not to destroy, but to save the principles of the Constitution. The form of Government therein embodied, I did think, and do still think, the best the world ever saw, and I fear the world will never see its like again.

JUDGE BYNUM. Be assured I should like very much to hear you, otherwise I should not have introduced the subject as I have. The same I feel warranted in saying for my friends. We came to spend a few days with you, not only to see you, and to revive the friendship of former years, but to talk with you, and to hear your views generally upon the present state of public affairs. We know your opinions on some matters differ widely from ours. But we cheerfully accord to you perfect sincerity in your convictions. You must not, though, indulge the hope or expectation of producing such a change in ours as you seem to think you can. That, indeed, would be a Herculean undertaking.

MR. STEPHENS. You mean simply to verify what is said in the old quaint lines:

"Convince a man against his will, He's of the same opinion still."

Or, as Butler, in Hudibras, has it:

"He that complies against his will, Is of his own opinion still."

PROF. NORTON. He rather intimates, one might infer, that the roots of his Radicalism would be more difficult to exterminate than were the roots of the hundred heads of the Lernæan Hydra, which even Hercules was unable to destroy without the assistance of Iolas. Is that your idea, Judge?

JUDGE BYNUM. No. I was not thinking of the Hydra, its heads or their roots. I was only giving utterance to the consciousness I feel of the impregnable position of Truth, Justice and Right, upon which my principles are founded; and, these being so founded, I meant only to say that I did not think that either they or my opinions in regard to them can possibly be changed.

MR. STEPHENS. Well, be that as it may. I did not mean to say that I thought that I could change your opinions on these subjects, but only that I could make it appear clearly to you, why I, with my convictions, acted as I did, under the circumstances. Our ideas of Truth, Justice and Right, in political as well as social matters, and all the relations of life, depend very much upon circumstances. This seems to be owing partly to the infirmities of human nature. There ought, however, to be no difference between intelligent minds as to Truth, which rests simply and entirely upon matters of fact; but, in practical life, there are great and wide differences, even on this, owing to a disagreement or a different understanding as to the facts merely. Justice and Right depending on the Truth of the facts, must, of course, be the subjects of much wider differences in all cases where the facts are not first settled, or where the Truth is not admitted by both sides. Men's convictions as to Truth, or what they receive as the Truth, depend entirely upon their understanding of facts. Convictions are always sincere. There may be insincere professions of opinions, but there can be no insincere convictions, as to Truth, Justice, or Right, in any matter relating to human conduct. These depend upon laws of mind, over which volition has no control. There is as much sound, genuine Philosophy,, as wit, in the couplets quoted. There is no such thing as convincing a man against his will. Galileo complied with the exactions of torture, by renouncing his belief in the rotatory motion of the earth; but his convictions of this great truth remained as firm as ever, notwithstanding. Belief and conviction are results with which the will has nothing to do; except in collecting and ascertaining the facts upon which depend the truth; or what is considered the truth, to which alone the mind yields its assent. Hence, the necessity of a very liberal charity in all discussions of this nature.

The question you submit relates to Government — one of the most intricate, as well as interesting, subjects that can engage the attention of reflecting minds. Cicero maintains, that nothing connected with human affairs can more properly or profitably occupy the attention of thinking men, in their moments of leisure, or periods of holiday, than matters concerning the good of the Commonwealth. Your question opens a wide field for interchange of views upon topics of this kind, and it will be quite as agreeable to me, with the qualification before stated, as it can be to you, to have a full, free and social talk on these and kindred matters, whether for bare entertainment only, and nothing else, or whether with a view to the chances of mutual profit, each agreeing to disagree throughout, where our convictions differ, or where, to state it differently, our understandings of the facts differ. Is it agreeable all round, that we should have such a talk, upon these terms, and conditions?

JUDGE BYNUM. Perfectly so, to me; and I will undertake to vouch for the others. You see the Professor and the Major both nod their assent.

MR. STEPHENS. Well, then, before undertaking to answer your question, Judge, "how I could reconcile it with my sense of duty, to go with my State against the Union," which opens such a field of inquiry, allow me to premise, by making an observation or two on your remark about my being a citizen of the United States, and as such, being bound by allegiance, as a loyal citizen (to use a popular phrase, so current just now), to obey the acts of that Government, as the supreme law of the land.

I agree with you in this, that allegiance and Paramount authority go together; that the first follows the latter. We shall have much to say on that, hereafter.

But, first, as to citizenship. Is there any such thing as citizenship of the United States, apart from citizenship of a particular State or Territory of the United States? To me it seems most clearly that there is not. We are all citizens of particular States, Territories, or Districts of the United States, and thereby only, citizens of the United States. I was a citizen of Georgia; being a citizen of Georgia, I became, thereby, a citizen of the United States, only because Georgia was one of the United States under the Constitution, which was the bond, or compact, of the Union between the States thus united. Had Georgia never united with the other States, her people would never have been, in any sense of the word, citizens of the United States.

JUDGE BYNUM. You do not mean to say that there is no such thing as being a citizen of the United States, except as a citizen of some one of the States or Territories?

MR. STEPHENS. Yes; that is exactly what I mean to say.

JUDGE BYNUM. That is, certainly, a strange idea. What do you do with naturalized foreigners, who are, by the laws, made citizens of the United States?

MR. STEPHENS. They are, as you and I are, citizens of the United States, because of their being, under the laws, admitted to citizenship of some one of the States or Territories of the United States. The only power Congress has, under the Constitution, on this subject, is to make uniform rules of naturalization. That is, to prescribe uniform rules, which are to be the same in all of the States, by which foreigners may be permitted to become citizens of the several States or Territories. Before this power was delegated to Congress, each State, as all other Sovereign, independent nations, had the uncontrolled right to admit foreigners to citizenship, upon such terms as each, for itself, saw fit. In order that the same terms or conditions might exist in all the States, each State, in the Constitution, agreed to delegate the power to Congress, to make the rules on the subject of naturalization uniform in all of the States. This is the view of all writers upon the subject.

Mr. Rawle, in his admirable treatise on the Constitution of the United States, has well said, on the subject of citizenship, generally:* "It cannot escape notice that no definition of the nature and rights of citizens appears in the Constitution." And then, on the subject of naturalization, and the reason of giving power to Congress over the subject, he says:† "In the second section of the fourth article, it is provided that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and the same rule had been ambiguously laid down in the Articles of Confederation. If this clause is retained, and its utility and propriety cannot be questioned, the consequence would be that, if each State retained the power of naturalization, it might impose on all other States such citizens as it might think proper. In one State, residence for a short time, with a slight declaration of allegiance, as was the case under the former Constitution of Pennsylvania, might confer the rights of citizenship; in another, qualifications of greater importance might be required: an alien, desirous of eluding the latter, might, by complying with the requisites of the former, become a citizen of a State in opposition to its own regulations; and thus, in fact, the laws of one State become paramount to that of another. The evil could not be better remedied than by vesting the exclusive power in Congress." That is, of making the rule for admission to citizenship in each State uniform in all the States. The same view is clearly and strongly expressed by Judge Curtis, of the Supreme Court of the United States, in a very able and elaborate opinion upon questions of as much importance as were ever decided by that Court. I refer to the Dred Scott case, 19 Howard's Reports, 393. Here is what he says:

"It appears, then, that the only power Congress has concerning citizenship is confined to the removal of disabilities of foreign birth."

Judge Curtis, in support of his position, cites numerous authorities — The Federalist, No. 42; 12th Wheaton, 259, 269; 3d Washington, 313, 322; 12th Wheaton, 277; 3d Story on Constitution, 1-3; Rawle on the Constitution, 84-88; 1st Tucker's Blackstone, App., 255, 259.

* Rawle en the Constitution, p. 85.

† Id., p. 84.

When a foreigner, therefore, wishes to become a citizen

of any one of the States or Territories, he has to file his petition to this effect, according to the uniform rules established by Congress; and the Courts, in the State or Territory, whether Federal or State, have to conform to these rules, in admitting to citizenship, where the application is made. He then becomes possessed of all the rights, privileges and immunities pertaining to citizenship which are possessed by native-born citizens in that State or Territory, and no more. He then and thereby only becomes a citizen of the United States as native-born citizens so become, and no more. He cannot enter suit, in any of the United States Courts, for a redress of any wrong within their jurisdiction, any more than a native-born citizen, without stating distinctly that he is a citizen of some one of the States, and of which one. He is, in every respect, after being naturalized in conformity to the uniform rules, as stated, on the same footing with native-born citizens. Of this class, Judge Curtis, further on in the same opinion, says: "The necessary conclusion is, that those persons, born within the several States, who, by force of their respective constitutions and laws, are citizens of the State, are thereby citizens of the United States." This covers the whole question. There is no such thing as general citizenship of the United States under the Constitution.

JUDGE BYNUM. That is not the general understanding upon this subject.

MR. STEPHENS. That may be, but it is certainly the understanding of the Supreme Court of the United States in repeated decisions, as well as the understanding of the ablest writers upon the subject; and it is very clear to my mind that it is the only true constitutional understanding of the subject. So much then for citizenship and its necessary legitimate consequences, by way of premise, barely at this time.*


* Mr. Calhoun, in the United States Senate, expressed himself upon the subject, as follows: —

"The Senator from Delaware (Mr. Clayton), as well as others, had relied with great emphasis on the fact, that we are citizens of the United States. I, said Mr. C., do not object to the expression, nor shall I detract from the proud and elevated feelings with which it is associated; but he trusted that he might be permitted to raise the inquiry, in what manner we are citizens of the United States, without weakening the patriotic feeling with which he trusted it would ever be uttered. If by citizen of the United States he meant a citizen at large, one whose citizenship extended to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all he had to say was, that such a citizen would be a perfect nondescript; that not a single individual of this description could be found in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and, as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this, and in no other sense, that we are citizens of the United States. The Senator from Pennsylvania (Mr. Dallas), indeed, relies upon that provision in the Constitution which gives Congress the power to establish a uniform rule of naturalization; and the operation of the rule actually established under this authority, to prove that naturalized citizens are citizens at large, without being citizens of any of the States. He did not deem it necessary to examine the law of Congress upon this subject, or to reply to the argument of the Senator, though he could not doubt that he (Mr. D.) had taken an entirely erroneous view of the subject. It was sufficient that the power of Congress extended simply to the establishment of an uniform rule by which foreigners might be naturalized in the several States or Territories, without infringing, in any other respect, in reference to naturalization the rights of the States as they existed before the adoption of the Constitution. Niles's Register, vol. xliii, Supplement 166.


Secondly. Another observation now in the same way upon what you call the supreme law of the land. The Constitution does declare that "this Constitution and the laws of the United States 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."

JUDGE BYNUM. Exactly so; and, this being so, is not everybody in the States — judges, legislators and people, whether citizens of the United States, in the usual acceptation of that term or not — bound to obey them?

MR. STEPHENS. Most certainly; so long as the Paramount authority over them shall so ordain and order, but no longer: so long as it is law, and no longer. There is a wide difference, as I stated at first, between the supreme law of the land and the Paramount authority. Obedience is due to the one as long as it is the law, and allegiance is due to the other when it declares, as it can, that the law no longer exists. In our Government, as in all Governments, there must be a supreme law-making power on the subjects within its jurisdiction; that is, the supreme power of making laws to be obeyed on these subjects must be lodged somewhere. It is not an absolute power in any Government founded upon the principles of ours. It is a power exercised in trust only. This supreme power, moreover, or the delegation of its exercise, emanates from Sovereignty or the Paramount authority, but it is not Sovereignty itself. All laws therefore passed in pursuance of the rules prescribed by the Sovereign or Paramount authority, are supreme, and to be obeyed so long as they remain of force by the continued authority of the Sovereign power. This is universally admitted; no one disputes it. In this country it is equally admitted on all hands that Sovereignty, which is the Paramount authority, resides with the People. All government, according to out axioms and maxims, is but the exercise in trust of delegated powers. The exercise of supreme or Sovereign powers may be by delegation. In this country it is entirely by delegation; but whatever is delegated may be resumed by the authority delegating. No postulate in mathematics can be assumed less subject to question than this. The exercise of supreme law-making power, even over the authority delegating it, may be legitimate so long as the delegated power is unresumed. Obedience to laws passed under such delegation of power, is, as I have said, a very different thing from allegiance which is due to the authority delegating the exercise of the supreme law-making power. Whenever the delegated powers are resumed, allegiance must be due to the resuming Sovereign power; to that which can rightfully make and unmake Constitutions.

The Government of the United States was created by the States. All its powers are held in trust by delegation from the States. These powers are specific and limited. They are supreme within the sphere of their limitations — supreme so long as the authorities delegating them continue the trust even over the authorities delegating them; but being held entirely by delegation, they exist no longer than the party or parties delegating see fit to continue the trust. In this sense alone is the authority of the General Government supreme, even over the subjects which lie within the sphere of the powers with which it was intrusted by delegation. The Paramount authority in this country, Sovereignty, that to which allegiance is due, is with the People somewhere. There is no Sovereignty either in the General Government or the State Governments. These are permitted to exercise certain Sovereign powers so long only as it shall suit the Sovereign will that they shall so do, and no longer. Sovereignty itself, from which emanates all political power, I repeat, remains and ever resides with the People somewhere. And with what People? Why, of necessity, it appears to me, with the same People who delegated whatever powers the General Government has ever been intrusted with; that is, the People of the several States; not the whole People of the United States as one mass, as can be most conclusively demonstrated.

In addition to this, I remark that this clause of the Constitution contains no grant or delegation of power in itself. It only declares what would have been the effect of the previously delegated powers without it. All Treaties or Covenants between Sovereigns are the supreme law over their subjects, or citizens, so long as they last. Indeed, so fair from containing any new or substantive power, upon its very face this clause shows that it was intended as a limitation of powers. So far from showing that absolute Sovereignty was thereby vested in the General Government, such Sovereignty as is entitled to the allegiance of anybody, it shows conclusively that even obedience is due to such laws, treaties, etc., only, as may be made, in pursuance of the Constitution. This, by itself shows the Government to be one of limited powers — and so far from allegiance being due to it in any sense, that even obedience is due only to a limited extent.

This was the opinion of Alexander Hamilton, who was one of the extremest of the Nationals of his day, and who never failed to claim all acknowledged, as well as some doubtful, or questionable powers, which tended to strengthen the Federal Government. While the Constitution was before the several States, for their consideration before its adoption, he unequivocally declared, on several occasions, that this clause conveyed no grant of power, and was entitled to no such construction as that which would claim under it the allegiance of the citizens of the several States. Let us see what he wrote on the subject at that time. In a note to the 27th number of the Federalist, wherein he had alluded to this clause, he says "the sophistry," as he called it, which had been employed to give it the construction you would put upon it, would, "in its proper place, be fully detected." And then, in the 31st number of the Federalist (Dawson's Edition), page 206, he thus detects and exposes this sophistry: "But," says he, "it is said that the laws of the Union are to be the supreme law of the land. But what inference is to be drawn from this, or what would they amount to, if they were not supreme? It is evident that they would amount to nothing. A law, by the very meaning of the term, includes supremacy. It is a rule which those, to whom it is prescribed, are bound to observe. If individuals enter a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its Constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed."

And further in the same paper — "But it will not follow from this doctrine that acts of the larger societies, which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the Land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth which flows immediately and necessarily from the institution of a Federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to the laws made pursuant to the Constitution, which I mentioned merely as an instance of caution in the Convention, since that limitation would have been to be understood, though it had not been expressed."

This shows conclusively that Mr. Hamilton, one of the extremest of the Nationals in his day — he who did wish a National government instituted instead of a Federal one, but who gave a cordial support to the Federal plan when the National one was abandoned, as we shall hereafter see — did not claim any delegation or grant of power from this clause of the Constitution, but expressly states that it was intended as a limitation, as its words fairly import, of other powers which had been delegated, and that this limitation had been inserted out of abundant caution on the part of the Convention. He maintained the same position in the State Convention of New York. This is quite enough I think to show in this place, by way of premise, that the allegiance of the citizens of the several States was never intended to be transferred to the United States, or to the Government of the United States, by this clause of the Constitution. And from what has been said, without going into a history of this clause, or explaining how it came to be introduced, which would strengthen the views given, it very clearly appears, as well as from the language of the clause itself, that the Government of the United States is not, by virtue of it, supreme or Sovereign in the sense in which you use that term; and so far from being entitled thereby to claim the ultimate or any sort of allegiance of the citizens of the several States, it is not entitled even to claim their obedience to its laws except within the strict limit of its specifically-delegated powers. Thus far, it appears clearly, that a thorough inquiry into and a full investigation of the nature of the Government of the United States, as well as the character and extent of its delegated powers, are essential to a correct understanding of the subject presented in the question propounded. Without this, there can be no correct knowledge or sound judgment as to the nature and character of the war, whether an Insurrection, a Rebellion, a Civil war, or a war of Aggression for unjust power and Dominion on one side — while one purely in defence of ancient and well- established Sovereign Rights on the other. Without this there can be no correct judgment as to whether I acted properly or improperly in the course I took, or as to the conduct or rectitude of any of the various actors therein, on one side or the other. To this inquiry we will therefore now proceed.

PROFESSOR NORTON. Without wishing to interrupt you, allow me a word at this point. What you have read from Mr. Hamilton's article in the Federalist was new to me. I was not aware that he took any such view of that subject. I was always of opinion that Mr. Hamilton claimed absolute Sovereignty for the United States, and I supposed it was with him, as with most others who do, mainly under this clause of the Constitution. In this it seems that I was wrong. You stated that the history of this clause of the Constitution, or the facts connected with its introduction, would strengthen the view you take of it, and in which it appears you are sustained by Mr. Hamilton. I should like, before you proceed further, to know the facts and circumstances attending its introduction, to which you refer, if it will not too much interfere with the line of your remarks.

MR. STEPHENS. Not at all. But allow me first to set you right with regard to Mr. Hamilton's position as to the absolute Sovereignty of the United States over the several States. You are quite mistaken in supposing that he ever held that doctrine. He advocated the Constitution as Federal in its character, as we shall see. In this 27th number of the Federalist he speaks of "the laws of the Confederacy." He styles the Government a "Confederacy.".

But, without digressing further on that point now, I will proceed to reply to your question. The history of this clause of the Constitution is this. It is well known, or, at least, it may be here stated, as it will be established without question, that, in the Convention that formed the Constitution, there was a party who were strongly in favor of doing away with the Federal system that existed before that time, and substituting, in its stead, a General National Government over the whole people of all the States, as one body politic. This party wished to do away entirely with the Sovereignty of the several States. Their object was to give the Central National Government Paramount authority over the Sovereignty of the States. With this view, a proposition was brought forward, to give the National Government power "to negative all laws, passed by the several States, contravening, in the opinion of the National Legislature, the articles of Union, or any treaties subsisting under the authority of the Union." This proposition, if it had been adopted, would have greatly favored the object of the Nationals, but it was rejected by a decided vote. Here is the journal of the Convention.* Only three States voted for it, while seven voted against it. It was then immediately afterwards that Luther Martin, of Maryland, the strongest States-Rights man, perhaps, in the Convention — one who would, under no circumstances, consent to any infringement upon the ultimate Sovereignty of the States, or agree to any thing tending to change the character of the Federal system, offered a proposition in these words: "That the legislative acts of the United States, made by virtue and in pursuance of the articles of Union, and all treaties, made and ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding."

* Eliot's Debates, vol. i, p. 207.

This proposition expressly restricted the authority of the United States, in all cases within the sphere of its delegated powers. It refused to confer upon the General Government the power or the right to judge of infractions upon the Articles of Union on the part of the States. It was a limitation against any construction by implication to that effect, and simply declared a truth, as Hamilton said of it. It simply asserted what would have been the result under fair construction without it; but it was offered from abundant caution, and was unanimously agreed to, as appears from the Journal on the same page. It was subsequently put in the form in which it is now found in the Constitution, by the committee on style and revision. There was no change in substance. And that it did not answer the purpose of the Nationals, as now contended for by many, appears conclusively, not only from the opinion of Hamilton cited; but from the action of the Nationals themselves in the Convention afterwards. For, notwithstanding this clause was agreed to, as stated, on the 17th of July, yet we find that the very identical original proposition was again offered on the 23d day of August afterwards, as appears on the Journal, page 260. It then met with no greater favor than it did at first. The Convention refused to entertain it, and it was withdrawn. Moreover, I will here add, that no truth is better established than that the general view and understanding of the advocates of the adoption of the Constitution in that day, in reference to this clause, were in conformity with those given by Mr. Hamilton. That is, that no power was granted by the clause — that it simply declared a truth — that it was intended as a limitation of powers delegated, and only announced a principle that would have been recognized by the Courts, even if it had not been made, or in other words, that this clause did not in the least change the character of the former Government in this respect, and that the acts of the General Government, under the present Constitution, are no more binding on the States, or the citizens of the States, by virtue of it, than they were under the Confederation. This was the opinion of Mr. Madison. Here, in a number of the Federalist, written by him (No. 37), he shows that "treaties made by Congress, under the Articles of Confederation, had been declared by Congress, and recognized by most of the States, to be the supreme law of the land," without any such declaration to that effect in the Articles of the Union. And further, if further argument be necessary to show the prevailing opinion at that time, I refer you to a decision of the Supreme Court of the United States, made in 1796. In this case, Ware, etc. vs. Hilton, etc., 3d Dallas, 199, Judge Chase says: "It seems to me that treaties made by Congress, according to the Confederation, were superior to the laws of the States, because the Confederation made them obligatory in all of the States. They were so declared by Congress, on the 13th of April, 1787, were so declared by the Legislatures and. Executives of most of the States, and were so decided by the judiciary of the General Government, and by the judiciaries of some of the State Governments." So it appears conclusively from the language of the clause, from the opinions of Mr. Hamilton, and Mr. Madison, and Judge Chase of the Supreme Court of the United States, that the proposition offered by Mr. Martin, and incorporated substantially in the Constitution, conferred no more power under the new Constitution than existed without the declaration under the Confederation.

PROF. NORTON. Your position, then, is simply this: that this clause in the Constitution effected no radical or substantial change in the character of the General Government from what it was before. That if it was not vested with complete Sovereignty over the State authorities, and entitled to the allegiance of the citizens of the several States under the Confederation, that it did not become so vested by virtue of this clause of the Constitution.

MR. STEPHENS. Exactly so. That is my position, and I will add that Judge Chase, in the same opinion from which I have just read, and to which we may have occasion to refer again, held that under the Confederation the States severally were clothed with all the attributes of perfect sovereignty. And yet the Articles of Confederation were the Supreme law of the land as much as the Constitution now is. All compacts between sovereigns are the supreme law over their subjects or citizens so long as they continue. This is the doctrine of Vattel. General Pinckney, in the South Carolina, Convention, when this clause of the Constitution was under discussion, after quoting Vattel to this effect, goes on: "Burlamaqui, another writer of great reputation on political law, says, 'that treaties are obligatory on the subjects of the powers who enter into treaties; they are obligatory as conventions between the contracting powers; but they have the force of law with respect to their subjects.' These are his very words: 'Ils ont force de loi a l'egarde des sujets, considèrès comme tels;' and it is very manifest, continues he, 'that two sovereigns, who enter into a treaty, impose, by such treaty, an obligation on their subjects to conform to it, and in no manner to contravene it."* Every treaty existing, to-day, between the United States and every other Government or Governments is the Supreme law over the subjects of such Government or Governments, as well as over the citizens of the several States of this Union. That is, every such treaty is a law, Superior to all other local laws in both countries, over which it operates. Their Courts are bound to so hold, and do so hold. This no more affects the allegiance of the subjects of those Governments than it does the allegiance of the citizens of these States These treaties are Compacts between the Parties to them, and laws as to their subjects or citizens.

* Elliot' s Debates, vol. iv, page 279.

This clause in the Constitution, therefore, settles nothing on the question of allegiance. The Constitution may be a bare convention or compact between the States as Sovereigns, and yet be the supreme law while it continues over their citizens, without affecting their ultimate allegiance in the slightest degree. So we will proceed with our inquiry as to the nature of the present Government of the United States, and enter into an examination of the vexed question, where, under it, the ultimate Sovereign power resides. These are essential facts first to be ascertained and settled.


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