ter 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 it introduction, to which you refer, if it will not too much interfere with the line of your remarks.

Not at all.

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

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

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."

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