Chapter X: Appendix (9)

"The Constitution of the United States provides that in all
criminal prosecutions the accused shall enjoy the right to a
_speedy_ trial by a Jury of the _State and District_ wherein the
crime shall have been committed. The only statute which, if the
Courts of the United States for the State of Georgia were open,
would authorize me to do more than hold this party to security of
the peace, and for good behavior, is the 33d section of the
Judiciary Act of the 24th September, 1789. That section, after
authorizing commitments, &c., for trial, before any Court of the
United States having cognizance of the offence, provides that if
the commitment is in a District other than that in which the
offence is to be tried, it shall be the duty of the Judge of the
District where the delinquent is imprisoned _seasonably_ to issue,
and of the Marshal of the same District to execute, a warrant for
the removal of the offender to the District in which the trial is
to be had. The District Attorney of the United States does not ask
me to issue such a warrant for this party's removal to Georgia for
trial. Therefore I can do nothing under this Act of Congress. It
does not authorize me to detain him in custody to abide the
ultimate result of possible future hostilities in Georgia, or to
hold him to bail for trial in a Court there, of which the sessions
have been interrupted, and are indefinitely postponed."

In reference to the counts of the indictment founded upon the 8th section of the Act of 1790 and the Act of 1820, the propositions I have are these:

"_Second_, That to convict the defendants, under either of the first five counts of the indictment, the Jury must have such evidence as would warrant a conviction for robbery if the acts proved had been performed on land.

"_Third_, That the defendants cannot be convicted of robbery, in the capture of the Joseph, unless she was taken with a piratical and felonious intent.

"_Fourth_, That if the defendants, at the time of her capture, were acting under the commission in evidence, and, in good faith, believed that such commission authorized her capture, they did not act with a piratical or felonious intent, and cannot be convicted under either of the first five counts in the indictment."

There are one or two authorities I did not state yesterday, which I beg now to furnish, as some additional authorities have been handed up on the other side:

The Josefa Segunda, 5 Wheaton, 357. In this case Judge Livingston says:

"Was the General Arismendi a piratical cruiser? The Court thinks
not. Among the exhibits is a copy of a commission, which is all
that in such a case can be expected, which appears to have been
issued under the authority of the Government of Venezuela. This
Republic is composed of the inhabitants of a portion of the
dominions of Spain, in South America, which have been for some
time, and still are, maintaining a contest for independence with
the mother country. Although not acknowledged by our Government as
an independent nation, it is well known that open war exists
between them and His Catholic Majesty, in which the United States
maintain strict neutrality. In this state of things, this Court
cannot but respect the belligerent rights of both parties, and does
not treat as pirates the cruisers of either so long as they act
under and within the scope of their respective commissions."

In the _United States_ vs. _The Brig Malek Adhel_ (2 Howard's U.S. Rep. 211), as to the Act of 1819, Judge Story (page 232) says:

"Where the Act uses the word piratical, it does so in a general
sense,--importing that the aggression is unauthorized by the law of
nations, hostile in its character, wanton and cruel in its
commission, and _utterly without any sanction from any public
authority or sovereign power. In short, it means that the act
belongs to the class of offences which pirates are in the habit of
perpetrating, whether they do it for purposes of plunder, or
purposes of hatred, revenge, or wanton abuse of power. A pirate is
deemed--and properly deemed_--HOSTIS HUMANI GENERIS. But why is he
so deemed? _Because he commits hostilities upon the subjects and
property of any or all nations, without any regard to right or
duty, or any pretence of public authority._ If he willfully sinks
or destroys an innocent merchant ship, without any other object
than to gratify his lawless appetite for mischief, it is just as
much piratical aggression, in the sense of the law of nations, and
of the Act of Congress, as if he did it solely and exclusively for
the sake of plunder, _lucri causa_. The law looks to it as an act
of hostility; and, being committed by a vessel not commissioned and
engaged in lawful warfare, it treats it as the act of a pirate, and
one who is emphatically _hostis humani generis_."

Then upon the question that this commission is only by color of authority from an unrecognized power, and that the authority to grant such a commission is disputed, I refer to the case of _Davison_ vs. _Certain Seal Skins_ (2 Paine's C.C.R. 332), which was a case of salvage of property after a piracy alleged to have been committed by Louis Vernet, at Port St. Louis, in the Eastern Falkland Islands, by taking them from a vessel,--he wrongfully and unlawfully claiming and pretending to be Governor of the Islands, under Buenos Ayres. The Court says:

"Robbery on the high seas is understood to be piracy by our law.
The taking must be _felonious_. A commissioned cruiser, by
exceeding his authority, is not thereby to be considered a pirate.
It may be a marine trespass, but not an act of piracy, _if the
vessel is taken as a prize_, unless taken feloniously, and with
intent to commit a robbery: the _quo animo_ may be inquired into.
_A pirate is one who acts solely on his own authority, without any
commission or authority from a sovereign State_, seizing by force
and appropriating to himself, without discrimination, every vessel
he meets with; and hence pirates have always been compared to
robbers. The only difference between them is that the sea is the
theatre of action for the one, and the land for the other."

By referring to this case, pp. 334, 335, your honors will find that Buenos Ayres had no lawful jurisdiction over the islands, and that our Executive Government had so decided; but Buenos Ayres avowed the acts of those claiming to act under her authority, and our Government discharged the prisoners who had been captured as pirates, disclaiming, under those circumstances, to hold them personally criminally responsible.

The next proposition which I state is this: "That, by the public law of the world, the law of nations, and the laws of war, the commission in evidence, supported by the proof in the case as to the color of authority under which it was issued, would afford adequate protection to the defendants against a conviction for piracy; and being an authority emanating neither from a foreign Prince nor foreign State, nor from a person merely, the offence charged in the last five counts of the indictment, is not within the purview of the 9th section of the Act of 1790, and the defendants cannot be convicted under either of those counts, if they acted in good faith under that commission."

I refer your honors to the case of the _Santissima Trinidad_, 7 Wheaton, 283, to the opinion of Judge Story, in which he says:

"There is another objection urged against the admission of this
vessel to the privileges and immunities of a public ship, which may
as well be disposed of in connection with the question already
considered. It is, that Buenos Ayres has not yet been acknowledged
as a sovereign independent Government, by the Executive or
Legislature of the United States, and therefore is not entitled to
have her ships-of-war recognized by our Courts as national ships.
We have, in former cases, had occasion to express our opinion on
this point. The Government of the United States has recognized the
existence of a civil war between Spain and her Colonies, and has
avowed a determination to remain neutral between the parties, and
to allow to each the same rights of asylum, and hospitality, and
intercourse. Each party is, therefore, deemed by us a belligerent
nation, having, so far as concerns us, the sovereign rights of war,
and entitled to be respected in the exercise of those rights. We
cannot interfere to the prejudice of either belligerent, without
making ourselves a party to the contest and departing from the
posture of neutrality. All captures made by each must be considered
as having the same validity; and all the immunities which may be
claimed by public ships in our ports, under the laws of nations,
must be considered as equally the right of each, and as such must
be recognized by our Courts of Justice, until Congress shall
prescribe a different rule. This is the doctrine heretofore
asserted by this Court, and we see no reason to depart from it."

Your honors, by referring to the case of The Bello Corunnes, 6 Wheaton, 152, will see the doctrine laid down distinctly, that acts may be piratical for all civil purposes which would not authorize the conviction of the perpetrators criminally as pirates; _e.g._, a citizen of the United States, taking from a State at war with Spain a commission to cruise against that power, contrary to the 14th art. of the Spanish Treaty;--and the Court held, in that case, that that would involve the consequences of a piracy, for the purpose of condemnation of property; but it would not be criminal piracy, under either the law of nations or of the United States.

On the general subject of privateers I had a reference to Vattel, but I do not think it necessary to read it, because the authorities on that subject cover it so fully.

I come now, if your honors please, to what my learned friend, when he addressed the Court on the part of the Government, has been pleased to call the political part of this case; and I have distinctly stated in my propositions what I contended for on that subject. In the first place, that the Federal Executive Government, and the executive governments of the States, under the Constitution of the United States, each possess the jurisdiction to decide whether their respective acts are within or exceed the limits of their respective constitutional powers, in cases of collision between them in their administrative acts, operating upon the public domain, or upon the State, or its citizens as a body politic.

I shall, without stopping for any discussion, simply state the subordinate propositions by which I think that is established, and give a reference to the authorities. I say, in the first place, as I said to the Jury, that citizens of the United States owe a divided allegiance, partly to the United States and partly to their respective States. They can commit treason against either; for the State constitutions and laws define and punish treason against the States, as the Constitution of the United States does treason against them.

The Federal and State Governments are each supreme and sovereign within the limits of their respective jurisdictions under the Federal and State Constitutions; each operates directly upon the citizen, and each also operates as a check and restriction upon the other, and upon the encroachments of the other, in seeking to extend beyond legitimate limits its jurisdiction over the citizen, or over the public domain common to both. Now, if your honors please, in regard to that, I will very briefly refer you to what I rely upon. I refer, in the first place, to sections 2 and 3, of Article 6th, of the Constitution of the United States.

"_Sec. 2._ This Constitution, and the laws of the United States,
_which shall be made in pursuance thereof_, and all treaties made,
or which shall be made, under the authority of the United States,
shall be the supreme law of the land; and the Judges in every State
shall be bound thereby, anything in the constitution or laws of any
State to the contrary notwithstanding.

"_Sec. 3._ The Senators and Representatives before mentioned, and
the members of the several State Legislatures, and all executive
and judicial officers, both of the United States and of the several
States, shall be bound by oath or affirmation to support this
Constitution; but no religious test shall ever be required as a
qualification to any office or public trust under the United
States."

In the amendments to the Constitution of the United States, Articles 9 and 10, we find this language:

"The enumeration in the Constitution of certain rights, shall not
be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people."

I refer to the case of McCulloch _vs._ The State of Maryland, 4 Wheaton, p. 400, in which the opinion was delivered by Chief Justice Marshall. He says:

"No political dreamer was ever wild enough to think of breaking
down the lines which separate the States, and of compounding the
American people into one common mass."

I cite particularly from pp. 402 and 410. On page 410 his language
is as follows:

"In America, the powers of sovereignty are divided between the
Government of the Union and those of the States. _They are each
sovereign with respect to the objects committed to it, and neither
sovereign with respect to the objects committed to the other._ We
cannot comprehend that train of reasoning which would maintain that
the extent of power granted by the people is to be ascertained, not
by the nature and terms of the grant, but by its date. Some State
constitutions were formed before, some since, that of the United
States. We cannot believe that their relation to each other is in
any degree dependent upon this circumstance. Their respective
powers must, we think, be precisely the same as if they had been
formed at the same time."

The next I refer to is the case of _Rhode Island_ agst. _Massachusetts_, 12 Peters, 889, where Judge Baldwin says:

"Before we can proceed in this cause, we must, therefore, inquire
whether we can hear and determine the matters in controversy
between the parties, who are two States of this Union, _sovereign
within their respective boundaries, save that portion of power
which they have granted to the Federal Government, and foreign to
each other for all but federal purposes_."

I now refer to the case of _Livingston_ vs. _Van Ingen_, 9 Johnson, 574, where Chancellor Kent reasons thus:

"When the people create a single entire Government, they grant at
once all the rights of sovereignty. The powers granted are
indefinite and incapable of enumeration. Every thing is granted
that is not expressly reserved in the constitutional charter, or
necessarily retained as inherent in the people. _But when a Federal
Government is erected with only a portion of the sovereign power,
the rule of construction is directly the reverse, and every power
is reserved to the members that is not, either in express terms or
by necessary implication, taken away from them and rested
exclusively in the Federal Head._"

"This rule has not only been acknowledged by the most intelligent
friends to the Constitution, but is plainly declared by the
instrument itself. This principle might be illustrated by other
instances of grants of power to Congress, with a prohibition to the
States from exercising the like powers; but it becomes unnecessary
to enlarge upon so plain a proposition, as it is removed beyond all
doubt by the 10th article of the amendments to the Constitution.
That article declares that 'the powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.' The
ratification of the Constitution by the Convention of this State
was made with the explanation and understanding that 'every power,
jurisdiction and right which was not clearly delegated to the
General Government remained to the people of the several States, or
to their respective State governments.' There was a similar
provision in the articles of Confederation, and the principle
results from the very nature of the Federal Government, which
consists only of a defined portion of the undefined mass of
sovereignty vested in the several members of the Union. There may
be inconveniences, but generally there will be no serious
difficulty, and there cannot well be any interruption of the public
peace in the concurrent exercise of those powers. _The powers of
the two Governments are each supreme within their respective
constitutional spheres. They may each operate with full effect upon
different subjects, or they may, as in the case of taxation,
operate upon different parts of the same subject._"

I now refer to the Massachusetts Bill of Rights of 1780, art. 4. It reads:

"The people of this Commonwealth have the sole and exclusive right
of governing themselves as a free, sovereign and independent State;
and do, and forever hereafter shall, exercise and enjoy every
power, jurisdiction and right, which is not, or may not hereafter
be, by them expressly delegated to the United States of America, in
Congress assembled."

I also refer to the New Hampshire Bill of Rights, of September, 1792:

"ART. 7. The people of this State have the sole and exclusive right
of governing themselves as a free, sovereign and independent State;
and do, and forever hereafter shall, exercise and enjoy every
power, jurisdiction and right pertaining thereto, which is not, or
may not hereafter be by them expressly delegated to the United
States of America, in Congress assembled."

I next beg leave to refer your honors to No. 32 of the Federalist, by Hamilton, who says:

"An entire consolidation of the States into one complete national
sovereignty would imply an entire subordination of the parts, and
whatever power might remain in them would be altogether dependent
on the general will. But as the plan of the Convention aims only at
a partial union or consolidation, _the State governments would
clearly retain all the rights of sovereignty which they before had,
and which were not by that act exclusively delegated to the United
States_."

Also, to the Federalist, No. 39, by Madison, in which he says:

"The difference between a Federal and National Government, as it
relates to the operation of the Government, is, by the adversaries
of the plan of the Convention, supposed to consist in this, that in
the former the powers operate upon the political bodies composing
the Confederacy in their political capacities; in the latter, on
the individual citizens composing the nation in their individual
capacities. On trying the Constitution by this criterion, it falls
under the national and not the federal character, though perhaps
not so completely as has been understood. In several cases, and
particularly in the trial of controversies to which States may be
parties, they must be viewed and proceeded against in their
collective and political capacities only. But the operation of the
Government on the people in their individual capacities, in its
ordinary and most essential proceedings, will, on the whole, in the
sense of its opponents, designate it, in this relation, a National
Government.

"But if the Government be national with regard to the operation of
its powers, it changes its aspect again when we contemplate it with
regard to the extent of its powers. The idea of a National
Government involves in it not only an authority over the individual
citizens, but an indefinite supremacy over all persons and things,
so far as they are objects of lawful government. Among a people
consolidated into one nation, this supremacy is completely vested
in the National Legislature. Among communities united for political
purposes, it is vested partly in the general and partly in the
municipal Legislatures. In the former case all local authorities
are subordinate to the supreme, and may be controlled, directed or
abolished by it at pleasure. _In the latter the local or municipal
authorities form_ DISTINCT AND INDEPENDENT PORTIONS OF THE
SUPREMACY, _no more subject, within their respective spheres, to
the general authority, than the general authority is subject to
them within its own sphere. In this relation, then, the proposed
Government cannot be deemed a national one, since its jurisdiction
extends to certain enumerated objects only, and leaves to the
several States a residuary and_ INVIOLABLE _sovereignty over all
other objects._ It is true that, in controversies relating to the
boundary line between the two jurisdictions, the tribunal which is
ultimately to decide is to be established under the General
Government. But this does not change the principle of the case. The
decision is to be impartially made according to the rules of the
Constitution; and all the usual and most effectual precautions are
taken to secure this impartiality. _Some such tribunal is clearly
essential to prevent an appeal to the sword and a dissolution of
the compact_; and that it ought to be established under the general
rather than the local Governments, or, to speak more properly, that
it could be safely established under the first alone, is a position
not likely to be combated."

I will refer, also, to the letter of Gov. Seward, written to Gov. Gilmore, of Virginia, October 24th, 1839, taken from the Assembly Journal, 63d Sess., 1840, p. 55. That distinguished public man says:

"You very justly observe, 'that neither the Government nor the
citizens of any other country can rightfully interfere with the
municipal regulations of any country in any way;' and in support of
this position you introduce the following extract from Vattel's Law
of Nations, 'that all have a right to be governed as they think
proper, and that no State has the smallest right to interfere in
the government of another. Of all the rights that belong to a
nation, sovereignty is doubtless the most precious, and that which
other nations ought the most scrupulously to respect if they would
not do her an injury.'

"It might, perhaps, be inferred, from the earnestness with which
these principles are pressed in your communication, that they have
been controverted on my part. Permit me, therefore, to bring again
before you the following distinct admissions: 'I do not question
the constitutional right of a State to make such a penal code as it
shall deem necessary or expedient; nor do I claim that citizens of
other States shall be exempted from arrest, trial and punishment in
the State adopting such code, however different its enactments may
be from those existing in their own State.' Thus you will perceive
that I have admitted the sovereignty of the several States upon
which you so strenuously insist. To prevent, however, all possible
misconstruction upon this subject, I beg leave to add that no
person can maintain more firmly than I do the principle that the
States are sovereign and independent in regard to all matters
except those in relation to which sovereignty is expressly, or by
necessary implication, transferred to the Federal Government by the
Constitution of the United States. I have at least believed that my
non-compliance with the requisition made upon me in the present
case would be regarded as maintaining the equal sovereignty and
independence of this State, and by necessary consequence, those of
all the other States."

I contend, then, that the people of the several States, in forming the State governments, have surrendered to the latter supreme and sovereign jurisdiction over all questions affecting the State, or its citizens as a body politic, not included in the grant of power to the General Government by the Federal Constitution. This surrender necessarily includes the power and jurisdiction to determine, co-ordinately with the Federal Government, whether the Federal Executive Government is acting within or transgressing the limits of its legitimate authority in any case affecting the State as such, or its citizens as a body politic, when the question is not one of the validity or constitutionality of a law of the United States, operating directly upon individual citizens, and conformity to which is to be enforced or resisted by suit or defence in the Federal or State Courts, with the right of ultimate appeal, in either case, to the Supreme Court of the United States; but, on the contrary, brings into collision the Federal and State Executive Departments of the Government, in the exercise of powers which, from their very nature and the mode in which they are exerted, never can be presented for the determination of a Court.

And with regard to that proposition I would cite Vattel, Book I., chap. 1, sec. 2, upon the proposition that jurisdiction to determine such a mixed question of law and fact has been ceded equally to the State as to the Federal Government. Vattel says:

"It is evident that, by the very act of the civil or political
association, each citizen subjects himself to the authority of the
entire body in everything that relates to the common welfare. The
authority of all over each member therefore essentially belongs to
the body politic or State; but the exercise of that authority may
be placed in different hands, according as the society may have
ordained."

I refer, also, to the Federalist, No. 40, by Madison. He uses this language:

"Will it be said that the fundamental principles of the
Confederation were not within the purview of the Convention, and
ought not to have been varied? I ask, what are those principles? Do
they require that, in the establishment of the Constitution, the
States should be regarded as distinct and independent sovereigns?
They are so regarded by the Constitution proposed. * * * Do they
require that the powers of the Government should act on the States,
and not immediately on individuals? In some instances, as has been
shown, the powers of the new Government will act on the States in
their collective character. In some instances, also, those of the
_existing_ Government act immediately on individuals. In cases of
capture, of piracy, of the post-office, of coins, weights and
measures; of trade with the Indians; of claims under grants of land
by different States; and, above all, in the cases of trial by
Courts Martial, in the Army and Navy, by which death may be
inflicted without the intervention of a Jury, or even of a Civil
Magistrate,--in all these cases the _powers of the Confederation_
operate immediately on the persons and interests of individual
citizens."

I would also refer your honors to the Report of the Committee of the General Assembly of Connecticut, on a call for the militia, by the General Government, in 1812. The Report reads:

"The people of this State were among the first to adopt that
Constitution; they have been among the most prompt to satisfy all
its lawful demands, and to give facility to its fair operations;
they have enjoyed the benefits resulting from the Union of the
States; they have loved, and still love and cherish that Union, and
will deeply regret if any events shall occur to alienate their
affection from it. They have a deep interest in its preservation,
and are still disposed to yield a willing and prompt obedience to
all the legitimate requirements of the Constitution of the United
States.

"But it must not be forgotten that the State of Connecticut is a
free, sovereign and independent State,--that the United States are
a Confederacy of States,--that we are a confederated and not a
consolidated Republic. The Governor of this State is under a high
and solemn obligation 'to maintain the lawful rights and privileges
thereof as a sovereign, free and independent State,' as he is 'to
support the Constitution of the United States,' and the obligation
to support the latter imposes an additional obligation to support
the former. The building cannot stand if the pillars upon which it
rests are impaired or destroyed. The same Constitution which
delegates powers to the General Government, forbids the exercise of
powers not delegated, and reserves those powers to the States
respectively."

And that was "approved by both Houses," and the following resolution passed:

"_Resolved_, That the conduct of His Excellency, the Governor, in
refusing to order the militia of this State into the service of the
United States, on the requisition of the Secretary of War and
Major-General Dearborn, meets with the entire approbation of this
Assembly."

I would also refer to the second speech of Mr. Webster on Mr. Foot's resolution, in reply to Mr. Hayne, in the Senate of the United States, where he thus expresses himself:

"The States are unquestionably sovereign, so far as their
sovereignty is not affected by this supreme law (the Constitution).
* * * The General Government and the State governments derive their
authority from the same source. Neither can, in relation to the
other, be called primary; though one is definite and restricted,
and the other general and residuary."

Also, to the case of _Luther_ vs. _Borden_, 7 Howard, 1--one of the Dorr rebellion cases. The Supreme Court of the United States there decided that the government of a State, by its Legislature, has the power to protect itself from destruction by armed rebellion by declaring martial law, and that the Legislature is the judge of the necessary exigency.

At this point the Court intimated that they would adjourn to the following day.

The District Attorney, Mr. E. Delafield Smith, stated that the case of the _United States_ vs. _William Smith_, one of the ship's company of the privateer Jefferson Davis, the trial of which had been proceeding in Philadelphia, had terminated in a verdict. That case involved the main questions, and also the question of jurisdiction involved here. Mr. Smith further stated that he had sent for a copy of the charge of Mr. Justice Grier in that case, and expected to receive it by telegraph, and he desired to reserve the right to refer to that charge as one of his authorities in this case.

_The Court_ assented.

Adjourned to Saturday, October 26th, at 11 A.M.

FOURTH DAY.

_Saturday, Oct. 26, 1861._

The Court met at 11 o'clock, when--

_Mr. Larocque_ resumed:

I will proceed very briefly, if your honors please, to close what I was submitting to the Court upon the propositions which, as I maintain, tend to show a colorable authority in the State government, in possible cases that might arise, to authorize the issuing of letters of marque. I will state them in their connection, in order that your honors may see what they are. The first is the one I considered yesterday, viz., that the Federal Executive Government and the executive governments of the States, under the Constitution of the United States, each possess the jurisdiction to decide whether their respective acts are within or exceed the limits of their respective constitutional powers in cases of collision between them in their administrative acts operating upon the public domain, or upon the State, or its citizens as a body politic.

I had concluded what I intended to submit upon that, and proceed to the others, which are--

2. That in such cases, the Constitution having erected no common arbiter between them, the right of forcible resistance to the exercise of unlawful power, which, by the law of nature, resides in the people, has been delegated by them, by the Federal and State Constitutions respectively, to the Federal and State Governments respectively, and each having the jurisdiction to judge whether its acts are within the constitutional limit of its own powers, has also necessarily the right to employ force in their assertion or defence, if needed.

3. That in such cases the citizen of a State which, in its political capacity, has come into forcible collision with the Federal Government, owing allegiance to both within the limits of their respective constitutional powers, and each possessing the jurisdiction to determine for him the compound question of law and fact, whether the constitutional limit of those powers has been exceeded by itself or the other in the particular case, is protected from all criminal liability for any act done by him, in good faith, in adhering to and under the authority of either Government.

I wish very briefly to refer your honors to a few authorities, which, I hold, sustain these propositions. I say, in the first place, that this right bears no analogy whatever to the right, once claimed and most successfully refuted, of the inhabitants of a State, in Convention, to decide by ordinance upon the unconstitutionally of a law of the Union, and to prevent by force its operation within the limits of the State, in a case legitimately falling within the cognizance of the Courts. The claim to collect duties under an Act of Congress alleged to be unconstitutional was strictly an instance of this latter class. The citizen from whom the duties were claimed could simply refuse to pay, and thereby refer the question of constitutionality of the law to the judicial tribunals to which it properly belonged, and which must necessarily pass upon the question before the duties could be collected. On the other hand, the claim to hold or retake forts or other public places within the limits of a State, as property of the United States, is one against which, if unauthorized, the State could not by possibility defend itself through the agency of the Courts.

Now, if your honors please, I have stated most distinctly, and admitted most fully, that, in whatever cases the judicial power of the United States extends to, it is supreme. That is to say, if a collision takes place in a suit in a State Court between the Federal and State laws, and the decision of the State Court is against the right, privilege, or exemption, as it is called in the judiciary Act, claimed under the authority of the Union, the Supreme Court of the United States can redress the error. But I am now speaking of that class of cases where the judiciary have nothing whatever to do, and in which, I contend, the Federal and State authorities are each supreme and sovereign, within the limits of their respective power, and neither has any right or authority beyond the lines which bound their respective jurisdiction. And, if your honors please, I refer to the Inaugural Address of Mr. Lincoln, not only for the proposition that the judicial authority has nothing to do whatever in a case such as that I am now supposing, but that, even in cases where the judiciary is competent to act, its decisions do not form precedents, do not form rules for the government of the co-ordinate departments of the Union, in future cases of State policy, and that the executive and the legislative departments are still left at liberty to act as if no decision had been made. I do not mean to be understood as acquiescing in that claim; I consider it as a doctrine infinitely more dangerous and destructive than the doctrine of constitutional secession; but it comes to us as the claim set up on the part of the President; and if that is at all correct, there is an end of all pretence that the judiciary is competent to afford any relief or protection in the other class of cases referred to.

He says:

"I do not forget the position assumed by some, that constitutional
questions are to be decided by the Supreme Court; nor do I deny
that such decision must be binding in any case upon the parties to
a suit, while they are also entitled to very high respect and
consideration in all parallel cases by all other departments of the
Government; and while it is obviously possible that such decision
may be erroneous in any given case, still the evil effect following
it being limited to that particular case, with the chances that it
may be overruled, and never become a precedent for other cases, can
better be borne than could the evils of a different practice. At
the same time the candid citizen must confess that, if the policy
of the Government upon the vital questions affecting the whole
people is to be irrevocably fixed by the decisions of the Supreme
Court, the instant they are made in ordinary litigations between
parties in personal actions, the people will have ceased to be
their own masters, having to that extent practically resigned the
Government into the hands of that eminent tribunal. Nor is there,
in this view, any assault upon the Court or the Judges. It is a
duty from which they may not shrink, to decide cases properly
brought before them, and it is no fault of theirs if others seek to
turn their decisions to political purposes."

I have not the document at this moment; but your honors will probably bear in mind that the Executive also lately consulted the law-officer of the Government upon the question of suspending the privilege of _habeas corpus_, and I well remember the clause in the opinion which was delivered by that eminent legal gentleman and high officer of the Government on that occasion, and which was afterwards communicated by the President to Congress as the basis of his action. In that opinion the present learned Attorney-General used this language: "To say that the departments of our Government are co-ordinate, is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment. It binds only the parties to the case decided." And your honors will recollect that, acting upon that enunciation of the law of the land and of the construction of the Constitution, although he admitted that the Supreme Court of the United States had decided that the privilege of _habeas corpus_ could not be suspended by the Executive, without the interposition of Congress, the legal adviser of the Government held, at the same time, that that decision of the Supreme Court was not binding upon the Executive.

Now, for the purpose of showing what I mean by the right of resistance reserved to the people by the law of nature, which, as I say, is delegated by them to these two sovereigns, for the purpose that each may maintain its own authority and prevent encroachment by the other, I beg to refer your honors to _Rutherforth's Institutes of Natural Law, vol. 1, page 391_, commencing with section 10. And as a proof than I broach no novel or revolutionary doctrine, your honors will bear in mind that these Institutes of Natural Law were a course of lectures delivered in one of the great seminaries of learning of England, and their doctrines thought fit and proper to be instilled into the minds of the youth of that Kingdom, the loyalty of whose people to their Government has become proverbial among all the nations of the world.

The author says:

"It is a question of some importance, and has been thought a
question not easily to be determined, whether the members of a
civil society have, upon any event, or in any circumstances
whatsoever, a right to resist their governors, or rather the
persons who are invested with the civil power of that society."

Then he states several cases in which the civil governors, as he calls them, lose their power over their subjects, and continues:

"Fourthly, Though the governors of a society should be invested by
the constitution with all civil power in the highest degree and to
the greatest extent that the nature of a civil power will admit of,
yet this does not imply that the people are in a state of perfect
subjection. Civil power is, in its own nature, a limited power; as
it arose at first from social union, so it is limited by the ends
and purposes of such union, whether it is exercised, as it is in
democracies, by the body of the people, or, as it is in monarchies,
by one single person. But if the power of a Monarch, when he is
considered as a civil governor, is thus limited by the ends of
social union, whatever obedience and submission the people may owe
him whilst he keeps within these limits, he has no power at all,
and consequently the people owe him no subjection, when he goes
beyond them.

"Having thus taken a short view of the several ways in which the
authority of the governors of a society fails, and the subjection
of the people ceases, we may now return to the question which was
before us.

"If you ask whether the members of a civil society have a right to
resist the civil governors of it by force? your question is too
general to admit of a determinate answer.

"As far as the just authority of the civil governors and the
subjection of the people extend, resistance by force is rebellion.

"Subjection consists in an obligation to obey; as far, therefore,
as the people are in subjection, they can have no right to resist;
because an obligation to obey, and a right to resist, are
inconsistent with one another.

"But the power of civil governors is neither necessarily connected
with their persons, nor infinite whilst it is in their possession.

"It ceases by abdication; it is overruled by the laws of nature and
of God; and it does not extend beyond the limits which either the
civil constitution or the ends of social union have set to it.

"Where their power thus fails in right, and they have no just
authority, the subjection of the people ceases; that is, as far as
of right they have no power, or no just authority, the people are
not obliged to obey them; so that any force which they make use of,
either to compel obedience or to punish disobedience, is unjust
force; the people may perhaps be at liberty to submit to it, if
they please; but, because it is unjust force, the law of nature
does not oblige them to submit to it.

"But this law, if it does not oblige the people to submit to such
force, allows them to have recourse to the necessary means of
relieving themselves from it, and of securing themselves against
it, to the means of resistance by opposing force to force, if they
cannot be relieved from it and secured against it by any other
means."

I continue my citation at--

"Sec. XV. In the general questions concerning the right of
resistance, it is usually objected that there is no common judge
who is vested with authority to determine, between the supreme
governors and the people, where the right of resistance begins;
and the want of such a judge is supposed to leave the people room
to abuse this right; they may possibly pretend that they are
unjustly oppressed, and, upon this pretence, may causelessly and
rebelliously take up arms against their governors, although they
are laid under no other restraints, and no other compulsion is
made use of, but what the general nature of civil society or the
particular circumstances of their own society require.

"But, be this as it may, the possibility that the right may be
abused, does not prove that no such right subsists.

"If we would conclude, on the one hand, that the people have no
right of resistance, because this right is capable of being abused,
we might, for the same reason, conclude, on the other hand, that
supreme governors have no authority.

"Whatever authority these governors have in any civil society, it
was given them for the common benefit of the society; and it is
possible that, under the color of this authority, they may oppress
the people in order to promote their own separate benefit.

"Sec. XVI. It is a groundless suggestion, that a right of
resistance in the people will occasion treason and rebellion, and
that it will weaken the authority of civil government, and will
render the office of those who are invested with it precarious and
unsafe, even though they administer it with the utmost prudence and
with all due regard to the common benefit.

"The right of resistance will indeed render the general notion of
rebellion less extensive in its application to particular facts.

"All use of force against such persons as are invested with supreme
power, would come under the notion of rebellion, if the people have
no right of this sort; whereas, if they have such a right, the use
of force to repel tyranical and unsocial oppression, when it cannot
be removed by any other means, must have some other name given to
it. So that, however true it may be that, in consequence of this
right of resistance, supreme government will be liable, of right,
to some external checks, arising out of the law of nature, to which
they would otherwise not be liable, yet it cannot properly be said
to expose them to rebellion."

I beg, in the next place, to read to your honors, from the opinion of Mr. Justice Johnson, a short paragraph. It is to be found in 1st Wheaton, 363, in the case of _Martin_ vs. _Hunter's Lessee_. I believe a paragraph from that has been already read, on the other side, and I wish to give you, in connection with it, what he says, speaking of the power of the judiciary, and the consequences that would result in any case to which that power did not reach. He says:

"On the other hand, so firmly am I persuaded that the American
people no longer can enjoy the blessings of a free Government,
whenever the State sovereignties shall be prostrated at the feet of
the General Government, nor the proud consciousness of equality and
security, any longer than the independence of judicial power shall
be maintained consecrated and intangible, that I could borrow the
language of a celebrated orator, and exclaim, 'I rejoice that
Virginia has resisted.'"

I also wish to read a sentence from the case of _Moore_ vs. _The State of Illinois_, in 14 Howard, p. 20--the opinion by Mr. Justice Grier. He says:

"Every citizen of the United States is also a citizen of a State or
Territory. He may be said to owe allegiance to two sovereigns, and
may be liable to punishment for an infraction of the laws of
either."

And Mr. Justice McLean, in speaking of the same subject, in the same case, at page 22, says:

"It is true the criminal laws of the Federal and State Governments
emanated from different sovereignties; but they operate on the same
people, and should have the same end in view. In this respect the
Federal Government, though sovereign within the limitation of its
powers, may, in some sense, be considered as the agent of the
States, to provide for the general welfare by punishing offences
under its own laws within its jurisdiction."

I wish also to refer to the case of the _United States_ vs. _Booth_, in 21 Howard--the opinion of CHIEF JUSTICE TANEY--in connection with the question of what the result is where the judiciary has not power to act. He says:

"The importance which the framers of the Constitution attached to
such a tribunal, for the purpose of preserving internal
tranquillity, is strikingly manifested by the clause which gives
this Court jurisdiction _over the sovereign States which compose
this Union_, when a controversy arises _between them_. Instead of
reserving the right to seek redress for injustice from another
State by their sovereign powers, they have bound themselves to
submit to the decision of this Court, and to abide by its judgment.
And it is not out of place to say, here, that experience has
demonstrated that this power was not unwisely surrendered by the
States; for, in the time that has already elapsed since this
Government came into existence, several irritating and angry
controversies have taken place between adjoining States, in
relation to their respective boundaries, and which have sometimes
threatened to end in force and violence, but for the power vested
in this Court to hear them and decide between them.

"The same purposes are clearly indicated by the different language
employed when conferring supremacy upon the laws of the United
States and jurisdiction upon its Courts. In the first case, it
provides that 'this Constitution, and the laws of the United
States, _which shall be made in pursuance thereof_, shall be the
supreme law of the land, and obligatory upon the Judges in every
State.' The words in italics show the precision and foresight which
marks every clause in the instrument. The sovereignty to be created
was to be limited in its powers of legislation; and, if it passed a
law not authorized by its enumerated powers, it was not to be
regarded as the supreme law of the land, nor were the State Judges
bound to carry it into execution."

And further on, speaking of the claimed right of the State of Wisconsin to discharge a prisoner convicted in the United States Court upon a criminal conviction, and to refuse afterwards to obey a writ of error issued out of the Supreme Court of the United States to review that judgment, he uses language of this kind:

"This right to inquire by process of habeas corpus, and the duty of
the officer to make a return, grows necessarily out of the complex
character of our Government, and the existence of two distinct and
separate sovereignties within the same territorial space, each of
them restricted in its powers, and each, within its sphere of
action prescribed by the Constitution of the United States,
independent of the other."

Now, if your honors please, upon that question still further--that where there is no possibility of the power of the judiciary being exercised, there being, as the learned Chief Justice expresses it in his own language, "two distinct and separate sovereignties within the same territorial space" exercising jurisdiction, the right of forcible resistance exists in the State governments. I beg to refer to the Federalist, No. 28, by Alexander Hamilton, p. 126. He says:

"It may safely be received as an axiom in our political system,
that the State governments will in all possible contingencies
afford complete security against invasions of the public liberty by
the federal authority. Projects of usurpation cannot be masked
under pretences so likely to escape the penetration of select
bodies of men as of the people at large. The Legislatures will have
better means of information; they can discover the danger at a
distance, and, possessing all the organs of civil power and the
confidence of the people, they can at once adopt a regular plan of
opposition; they can combine all the resources of the community.
They can readily communicate with each other in the different
States, and unite their common forces for the protection of their
common liberty."

I refer also to the _Federalist_, No. 46, by James Madison, where he uses this language:

"Were it admitted, however, that the Federal Government may feel an
equal disposition with the State governments to extend its power
beyond the due limits, the latter would still have the advantage in
the means of defeating such encroachments. If the act of a particular
State, though unfriendly to the National Government, be generally
popular in that State, and should not too grossly violate the oaths
of the State officers, it is executed immediately, and of course by
means on the spot, and depending on the State alone. * * * On the
other hand, should an unwarrantable measure of the Federal
Government be unpopular in particular States, which would seldom
fail to be the case, or even a warrantable measure be so, which
may sometimes be the case, the means of opposition to it are at
hand. * * *