a manifestation of that lack of patriotism that would fail, in the formation of an organic law, to express a proper allegiance and devotion to the Government of the United States, and that enthusiastic zeal which would encumber our declaration of rights with ambiguity. We should be particularly careful to avoid either extreme, and especially should we be careful when the waves of revolution are surging over all this land, that we do not through a zealous, through what I may perhaps properly designate as an over-zealous devotion to political abstractions, permit ourselves to be led into inserting in our organic law provisions or expressions which may properly be classed as ambiguous, and which, perhaps, those who come after us may find it extremely difficult to understand or explain.

[July 6.

proper times, and in all proper places, there is no necessity of making a useless parade of it. I do not think that by stopping here after the words "Federal Government," omitting what follows to the end of the section, and inserting instead an explanation of the paramount allegiance therein referred to, we shall either be bringing our loyalty into disrepute, or doing any injustice to those who are to come after us, and who may not, and certainly will not, with such ambiguous expressions as are here contained, be able to explain exactly what we meant in this Declaration of Rights.

I believe, Mr. Chairman, that the allegiance, and not only the allegianee, but the property, the life, and all that he has, of every citizen is due to his Government; but I believe there is no such thing as a "paramount allegiance. Now, sir, if we are wedded to this phrase If the Congress of the United States shall pass a "paramount allegiance"-a phrase which I law which is unpleasant, odious or repulsive to may be permitted to say is an unhappy combi- any portion of the people of the United States, nation of terms at the best, because allegiance and that law shall be declared constitutional is the attribute of sovereignty, and sovereignty by the Federal Judicial tribunals, I believe it is supreme, an integral part of itself, an ulti- is our duty to obey it, without any attempt at mate atom which cannot be divided, and there- resistance. And if the local Legislature passes fore there can be no such thing as a paramount law that is unpleasant to the people of the allegiance-I say if we are wedded to this phrase, why not explain in what it consists, and what we mean by the expression? As to the rest of the language of this original section -that the "Constitution of the United States confers full power on the Federal Government," etc., and that upon any" attempt to secede from the Federal Union, or forcibly resist the execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force," etc., I suppose no one will insist on its being placed in the section, because it follows by implication among the powers of Government. But if we insert the words, "but the paramount allegiance of every citizen is due to the Federal Government," then I am in favor of adding the words, "in the exercise of all its Constitutional powers, as the same have been or may be defined by the Federal Judiciary."

United States, and that local law passed by the local Legislature be declared constitutional, also, by the Federal Judicial tribunals, we owe just as much allegiance to that law as we do to any law passed by Congress. A constitutional law, enacted by Congress, declared constitutional by the Federal Judicial tribunals, and a constitutional law enacted by the Legislature of the State of Nevada, declared constitutional by the Federal Judicial tribunals, are equally binding, and equal allegiance is due to both. There can be, therefore, no such thing as a paramount allegiance, because "paramount "implies superior, and the allegiance due to one constitutional law is not superior to the allegiance due to another. The allegiance of the citizen is equally due to either, whether it be a Federal or a State law.

I should be sorry, Mr. Chairman, while I am earnestly desirous that the loyalty of the peoI trust that no gentleman will misunderstand ple of Nevada shall be properly expressed in my position on this question. I yield to no her organic law, to see her come limping, and man in my devotion to the Federal Union, nor halting, and bound, into the Union. I should in my abhorrence of the doctrines of secession be sorry to see her come into the sisterhood of and nullification. And I have no hesitation in States hampered by an ambiguity. I should be avowing my belief in the full and complete sorry to see her enter the Union tied hand and right and Constitutional power of the Govern- foot, when such a thing is odious to the selfment to put down any and all attempts to sub-respect of the citizen, and is uncalled for by the vert its authority by armed force. It has that necessities of the times, or by the requirements power, and I believe it ought to and will con- of the Enabling Act, which gives us the right tinue to exercise that power, as it is exercising to form a State Government, and become a it now, until the last vestige of the rebellion is State. I do not intend, and indeed I would not driven from the land. I believe that above all have the right to use the time of the Convention the flames of war, the groans of the dying, by opening up a discussion of the relative the shrieks of the wounded in battle, and rights of the Federal and State Governments, above all the turmoil and strife of this wicked and the relative allegiance due to the Federal rebellion, the power and dignity of the Federal aud to the State Constitutions. We all underGovernment will stand unmoved, unsubverted, stand that where the local laws come in conundestroyed. But, nevertheless, I believe that flict with the Constitution and laws of the Uniwhile we should express our loyalty at all ted States, the latter over-ride and blot out the

Wednesday,]

FITCH EARL-DELONG-PROCTOR.

[July 6.

creed.

We enter the Union, sir,-if the people shall decree that we enter it at this time-under circumstances most peculiar. Our young State will be battle-born, but she will live and grow when the civil strife surrounding us shall have become only a memory. The organic law we are creating will be a rule of action, I trust, for a great people, when the gates of eternity shall have closed upon the old age of our grand-children. Our functions are higher than those of any body legislating only for the immediate future, and our sense of responsibility should be so much greater. Let us try and be prudent, if we cannot be altogether wise. Let us not mar the symmetry of the structure we hope to erect by the language of extravagance, even if it be the extravagance of loyalty, or by the insertion of an uncomely surplusage of what those who come after us may designate as questionable, and indistinct patriotism. word, let us keep our political extravagances for our political platforms, and make our Constitution an enduring chart of government, rather than a string of glittering and unexplained generalities.

former, and therefore no paramount allegiance, and not engraft in it a wild, Jacobinical nor any other allegiance, is due to the State law in such case, because all allegiance is due to the one, and none to the other. But, at the same time. when our Constitution and laws are in accordance with, and not hostile to, the letter or spirit of the Constitution and laws of the United States, we owe just as much allegiance to the laws passed by the State Legislature, as we do to the laws passed by Congress. Why, Mr. Chairman, what do gentlemen want? Is not this language strong enough, and loyal enough? It says that our paramount allegiance is due to the Federal Government. How? What does it mean? Clearly that it is due to the Federal Government in the exercise of its constitutional powers. Gentlemen surely do not mean to say that our allegiance is due to the Federal Government in the exercise of unconstitutional powers; because if we say that, we reduce all government to anarchy. We place ourselves at the absolute mercy of any despotic government which may chance by the exigencies of the hour to obtain the control of affairs. When we say "paramount allegiance," we should define what we mean, and say that the "paramount allegiance of every citizen is due to the Federal Government in the exercise of all its constitutional powers." Is there any objection to that?

Now, who is to define those Constitutional powers? I do not advocate the theory that the State Judiciary, the Legislature of the State, or the Executive, or the people of the State, should be allowed to judge of the Constitutionality of an act of Congress. If I were to say that, I should be advocating a wrong. I should be advocating, or at least giving my influence, to the theory of nullification, a theory which I condemn and reprobate. But I say, "the paramount allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers, as the same have been or may be defined by the Federal Judiciary." That is the tribunal by which they are to be defined. Surely the most uncompromising loyalty, the most intense and unmitigated devotion to the Government, can ask no more than that. Will gentlemen consider this question? Why should we wish to fetter the people who will come after us with an ambiguity? Why not define what we mean? The most intense patriotism cannot, certainly, object to our saying that we mean only that our allegiance is due to the Federal Government in the exercise of its constitutional powers as defined by the Federal Judicial tribunals. I trust that gentlemen will consider that it is a fundamental law that we are framing.-not a political platform, nor the resolutions of a mass meeting. I trust that we shall exhibit a decent, respectful, and| proper patriotism; a patriotism that shall be in accordance with the ideas and wishes of our constituents; and at the same time, that we shall frame an organic law that may be explained and understood by those who come after us,

In a

Mr. EARL. I desire to offer an amendment to the amendment, or substitute pending. My amendment is, to strike out the third sentence. or paramount allegiance clause, altogether; and I will ask the Secretary to read the section as it will then stand.

The SECRETARY read as follows:

SEC. 2. All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. The Constitution of the United States confers full power on the Federal Government to maintain and perpetuate its existence, and whensoever any portion of the States, or people thereof, atresist the execution of its laws, the Federal Governtempt to secede from the Federal Union, or forcibly ment may, by warrant of the Constitution, employ armed force in compelling obedience to its authority.

Mr. EARL. Now, Mr. Chairman, it seems to me that this is all we want.

Mr. DELONG, (interrupting.) I rise to a question of order. It is a disagreeable duty, and especially so in the case of my colleague, but it must be done, because if the violation of the rule is tolerated in this instance it must be again. My point is, that an amendment to an amendment is as far as we can go in the way of amendments. We have tolerated a substitute beyond that, but we certainly cannot amend a substitute, under any rules, or under the most liberal construction of any rules.

Mr. PROCTOR said he would accept of Mr. Earl's amendment in the place of his own substitute.

Mr. DELONG contended that still Mr. Earl's amendment was not in order, under the rules as laid down in Jefferson's Manual.

Mr. PROCTOR said he would withdraw his substitute altogether, to allow Mr. Earl's to come in.

Wednesday.]

EARL-PRESIDENT-DELONG-HAWLEY.

Mr. EARL offered his amendment as a substitute.

[July 6.

that the only possible objection which he imagined could be urged against this latter portion of Section 2, now under consideration, was that of surplusage. I have examined it carefully, very frequently before I came to this Convention, and quite frequently since, and I am utterly at a loss, taking into consideration the present condition of our national affairs, to perceive that there is anything like surplusage, or anything like tautology in the section. There is not a word in it, in my opinion, which can possibly be objectionable to a man who stands firmly and squarely upon that platform which every man who loves his country ought

The PRESIDENT. The question now comes up whether or not a substitute is in order, an amendment, and an amendment to an amendment being pending. The Chair has heretofore been led into error in its ruling on this point, because we have ordinarily been governed by the rules adopted by legislatures, and what of experience the Chair has had has mostly been in the California Legislature, in which, under the rules, or at least under the prevailing practice, substitutes have been recognized. But upon examination of Jefferson's Manual, which now governs us, I can nowhere find substitutes to stand upon at this time. recognized at all. I think we can go no fur- It is generally understood aud conceded that ther than an amendment to an amendment, all rights and powers not delegated to the Govunder the rules we have adopted, and the substi-ernment are reserved. Now, Mr. Chairman, we tute is therefore not in order. The question now delegate, negatively, certain rights to the Fedis on the amendment proposed by the gentle-eral Government. We insert in this section, if man from Washoe (Mr. Nourse) to the amend- it be adopted, a declaration that the Federal ment offered by the gentleman from Humboldt Government has a right to compel the obedi(Mr. Banks). The apparent confusion has arisen from the frequent changes of the rules; we have this morning fallen back upon Jefferson's Manual as embodying our only rules, and if we understand and adhere to these, there will be no confusion or difficulty in the future. Mr. DELONG. The pending amendment of the gentleman from Washoe, I understand, is to strike out all after " Federal Government," where those words occur in the section. Now, Mr. Chairman, I like this language which it is proposed to strike out

No power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith, or perform any act tending to impair, subvert or resist the supreme authority of the GovernUnited States confers full power on the Federal Government to maintain and perpetuate its existence, and whensoever any portion of the States, or people thereof, attempt to secede from the Federal Union, or forcibly resist the execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its authority.

ment of the United States. The Constitution of the

ence of all its subordinate members, if any attempt is made to set aside any enactment of the Federal Government. And that, sir, is a doctrine to which every loyal man ought to be willing to subscribe. It is a doctrine which every true man ought to be willing to see written in letters of fire upon the firmament, that he who runs may read. There is one objection, however, which might possibly be urged to this Section 2, leaving out the amendment proposed by the gentleman from Storey, (Mr. Fitch,) but it is an objection which would probably only be raised by men who are tainted with the heresy of State Rights. And the amendment proposed by the gentleman from Storey covers that ground precisely and exactly. He who is unwilling to subscribe to the doctrine that the paramount allegiance of every citizen is due to the Federal Government in the exercise of its constitutional powers, as prescribed, and direct d, and exemplified by the decisions of the Federal courts, certainly cannot, I think, claim to represent fairly and correctly the loyal sentiments of the people of the Territory of Nevada.

It may be considered as surplusage, possibly, but in no other way, I think, can that lauguage be deemed objectionable, at least by And, sir, I trust, in view of the position of persons who are presumed to be of the proper our national affairs-in view of the duty which way of thinking politically, that is, by men rests upon this Convention to place themselves who disbelieve in the doctrine of the right of fairly and squarely upon the record, that any secession, which class includes the major por-motion to strike out this language, so eminently tion of our community at the present time. I proper, just, and correct, may be overruled by would like very much to see the amendment the Convention, and that the motion of the genadopted which was offered by my colleague. tleman from Humboldt, as amended by the (Mr. Fitch,) or by the gentleman from Hum gentleman from Storey, may prevail by the boldt, (Mr. Banks,) and amended by my col- unanimous voice of this Convention. That league, but striking out the balance of the sec-action will do more to give confidence to the tion might give dissatisfaction to some of our Union brethren, and really I do not know but they would have good reason for dissatisfaction.

Mr. HAWLEY. I trust, most sincerely, that the amendment offered by the gentleman from Washoe will not prevail. The gentleman from Storey, (Mr. DeLong,) stated a moment sincǝ

loyal people of this Territory-more to satisfy them that their delegates are men who do not hrink from their duty-than any other course which we might pursue. By incorporating the amendments proposed into this section, we shall render our meaning clear and plain to every man who can read and properly construe the English language. And not only that, but we

NOURSE.

shall silence every argument which could be note can secede from his promise to pay, withmade against this section when presented to out paying the note. We say the paramount the loyal people of Nevada-arguments which allegiance of every citizen is due to the United would be employed by those men who, whether States. No matter if the State does undertake openly or covertly, are acting in sympathy to withdraw its allegiance, the allegiance of with that party which has plunged this country into rebellion and war, and made a Golgotha of many a beautiful valley in the East.

Now if there were no compact or agreement of this kind in the Constitution of the United States, then the people in each of the sovereign States would, as the secessionists claim, owe paramount allegiance to that State. But the bargain is made. It is written down in the Constitution of the United States, and it is a I do not like the other addition, proposed by bargain that nobody has any right to secede the gentleman from Humboldt, (Mr. Banks.) from, any more than the maker of a promissory I am not prepared to say, at this moment,

Wednesday,]

FITCH-NOURSE-EARL.

[July 6.

whether or not I would like the addition pro- | and binding in that case, and if it is held unposed by the gentleman from Storey. (Mr. constitutional, it is unconstitutional in that Fitch,) in regard to the matter of decisions by case. the Federal Judiciary. Exactly to what extent it is to go I am not prepared to say. I think, however, that there are two other coördinate departments of the General Government besides the Judiciary; and I think, possibly, we should recognize the fact, that some questions the Legislative and Executive departments must decide for themselves. I am not prepared, therefore, to vote for that amendment. I am not prepared, certainly, to say that every decision of the United States Supreme Court is to be accepted as indisputably right. Of course, any decision of that tribunal is the law, in the case in which it is given, and must be obeyed as the law in that case. But I remember that the Federal Judiciary decided that the fugitive slave law was constitutional; and I should be sorry to think that I was precluded from raising that question again, in every way I could, convinced as I am that that decision was a most flagrant and gross abuse of power. It may be that, upon examination and reflection, I shall come to the conclusion that this addition, as regards decisions by the Supreme Court of the United States, is all right, but I am not now prepared to say it is, and it strikes me that it might bring about confusion.

Let the decision be on the one side or the other, the decision is law in that case. But the question may be raised again in a new case, and a future Supreme Court may decide it the other way. Hence I am not prepared to say, Mr. Chairman, that this would be a wise addition.

Mr. FITCH. Will the gentleman allow me to ask him a question? Do I understand him to say that each of the three coördinate branches of the Government have a right to pass upon the constitutionality of the laws enacted by Congress?

It seems to me that we have stated, in what this section says down to that point, all that need be stated, and then this addition, in regard to constitutional powers and the decisions of Federal tribunals would be mere gloss. The Constitution of the United States was very carefully prepared, and that Constitution. so carefully prepared, and so often and thoroughly discussed, in Congress, and in the Courts all over our land, must be the best interpretation of itself, and the best interpretation of this Constitution which we are framing. So far as the power of the United States Courts goes, I bave no doubt that the sections of the Constitution which establish and define the powers of the United States Courts are the best interpretation. And the Constitution of the United States is the best definer of what the extent of our allegiance is. That we owe paramount allegiance to the Federal Government-that, whatever happens in our State, we are still subjects or citizens of the United States, and owe to the United States our service, rather than to our State-is all we say or need to say. That is all that our language can be twisted into when we say that we owe paramount allegiance to the Government of the United States. Though I am, for one, in favor of leaving the section as it stands down to "Federal Government," yet I have no feeling in the matter, and if I am voted down shall submit cheerfully.

Mr. EARL. I have at one time handed in a substitute which was not considered as being in order at the time, and as the matter seems to create considerable talk, I shall not press it, nor offer any other amendment, because it appears to me that the proposition of my colleague, (Mr. Fitch,) clears up the whole matter. I regarded this paramount allegiance clause as entirely surplusage, and I still think it is not necessary at all; but we find it here already, and since it is possible, if we strike it out, that we may be considered as being tender-footed on the question, I think the propriety of that course is at least doubtful. Therefore I am disposed to leave it there, although it is true that it makes the section a little longer than is really necessary. The amendment I proposed was to strike out this portion :

Mr. NOURSE. Certainly not. But they are, nevertheless, the powers which must decide by their action, in some cases, whether their course is constitutional or not. I judge from the tone of the gentleman's remarks that he is rather too much inclined, as I look upon it, to favor certain doctrines of the old Whig school. Now, I wish to state that I was brought up in the strictest school of State Rights Democracy, and I continued with that party until it ran pretty nearly into secession, when I left it. I believe that General Jackson was right when he said. when the question came before him either to sign or to veto a bill establishing a United States Bank, that, notwithstanding the Supreme Court had held in prior cases, and in more than one instance, that Congress had the power to pass such a law, he conscientiously believed it to be his duty to veto that bill, because he must judge for himself as to its constitutionality. What I mean is this-that the Executive, in his action, must judge for himself what is constitutional and what is not. And when a question comes up in a Court of law, in a case at law, and is brought to the United States Supreme Court, as the Court of last resort, then the decision of the United States Supreme Court is the law in that case. There is no doubt about that. If the law is held to be If that were taken out we should still have constitutional by the Court, it is constitutional all that is necessary. We recognize the powers

But the paramount allegiance of every citizen is due to the Federal Government; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith, or perform any act tending to impair, subvert or resist the supreme authority of the Government of the United States.