Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 40

"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 punis.h.i.+ng 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 Const.i.tution 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 Const.i.tution, 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 pa.s.sed 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 s.p.a.ce, each of them restricted in its powers, and each, within its sphere of action prescribed by the Const.i.tution 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 s.p.a.ce" 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. * * *

"But ambitious encroachments of the Federal Government on the authority of the State governments would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause; a correspondence would be opened; plans of resistance would be concerted; one spirit would animate and conduct the whole. The same combination, in short, would result from an apprehension of the _federal_ as was produced by the dread of a _foreign_ yoke; and, unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness would ever drive the Federal Government to such an extremity? * * * But what would be the contest in the case we are supposing? Who would be the parties? A few Representatives of the people would be opposed to the people themselves; or, rather, one set of Representatives would be contending against thirteen sets of Representatives, with the whole body of their common const.i.tuents on the side of the latter.

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the Federal Government may previously acc.u.mulate a military force for the projects of ambition. * * * Extravagant as the supposition is, let it, however, be made. Let a regular army, fully equal to the resources of the country, be formed, and let it be entirely at the devotion of the Federal Government; still it would not be going too far to say that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed 1/100th of the whole number of souls, or 1/25th part of the number able to bear arms. This proportion would not yield to the United States an army of more than 25 or 30,000 men. To these would be opposed a militia amounting to near 500,000 citizens, with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence."

I shall not spend the time of your honors by reading the Virginia and Kentucky resolutions--the one the production of James Madison, and the other of Thomas Jefferson--with which you are so familiar. They fully bear out the doctrine for which I contend, and much more than I contend for. I wish, however, to read, from the American State Papers, vol. 21, p. 6, a series of resolutions adopted by the Legislature of Pennsylvania, on the 3d April, 1809. They are as follows:

"_Resolved_, by the Senate and House of Representatives of the Commonwealth of Pennsylvania:

"That, as a member of the Federal Union, the Legislature of Pennsylvania acknowledges the supremacy, and will cheerfully submit to the authority, of the General Government, as far as that authority is delegated by the Const.i.tution of the United States.

But while they yield to this authority, when exerted within const.i.tutional limits, they trust they will not be considered as acting hostile to the General Government _when, as the guardians of the State rights_, they cannot permit an infringement of those rights by an unconst.i.tutional exercise of power in the United States Courts.

"_Resolved_, That in a Government like that of the United States, where there are powers granted to the General Government and rights reserved to the States, it is impossible, from the imperfection of language, so to define the limits of each that difficulties should not sometimes arise from a collision of powers; and it is to be lamented that no provision is made in the Const.i.tution for determining disputes between the General and State Governments by an impartial tribunal, when such cases occur.

"_Resolved_, That, from the construction which the United States Courts give to their powers, the harmony of the States, if they resist the encroachments on their rights, will frequently be interrupted; and if, to prevent this evil, they should on all occasions yield to stretches of power, the reserved rights of the States will depend on the arbitrary powers of the Courts.

"_Resolved_, That should the independence of the States, as secured by the Const.i.tution, be destroyed, the liberties of the people in so extensive a country cannot long survive. To suffer the United States Courts to decide on State rights, will, from a bias in favor of power, necessarily destroy the federal part of our Government; and, whenever the Government of the United States becomes consolidated we may learn from the history of nations what will be the event."

To prevent the balance between the General and State Governments from being destroyed, and the harmony of the States from being interrupted--

"_Resolved_, That our Senators in Congress be instructed, and our Representatives be requested, to use their influence to procure amendment to the Const.i.tution of the United States, that an impartial tribunal may be established to determine disputes between the General and State Governments; and that they be further instructed to use their endeavors that, in the meantime, such engagements may be made between the Governments of the Union and of the State as will put an end to existing difficulties."

Those resolutions were transmitted to Congress by President Madison.

They were never acted upon.

My next reference is to the Remonstrance of the State of Ma.s.sachusetts against the War of 1812, adopted June 18th, 1813--from the _American State Papers_, vol. 21, page 210:

"The Legislature of Ma.s.sachusetts, deeply impressed with the sufferings of their const.i.tuents, and excited by the apprehension of still greater evils in prospect, feel impelled by a solemn sense of duty to lay before the National Government their views of the public interests, and to express, with the plainness of freemen, the sentiments of the people of this ancient and extensive Commonwealth.

"Although the precise limits of the powers reserved _to the several State sovereignties_ have not been defined by the Const.i.tution, yet we fully concur in the correctness of the opinions advanced by our venerable Chief Magistrate, that our Const.i.tution secures to us the freedom of speech, and that, at this momentous period, it is our right and duty to inquire into the grounds and origin of the present war, to reflect upon the state of public affairs, and to express our sentiments concerning them with decency and frankness, and to endeavor, so far as our limited influence extends, to promote, by temperate and const.i.tutional means, an honorable reconciliation. * * * _The States, as well as the individuals composing them, are parties to the National Compact; and it is their peculiar duty, especially in times of peril, to watch over the rights and guard the privileges solemnly guaranteed by that instrument._"

There were also a set of resolutions, which I will not take time to read, pa.s.sed by the Legislature of New Jersey, November 27th, 1827, which will be found in the _American State Papers_, vol. 21, page 797.

They were based upon the then prevalent opinion that the Const.i.tution had not conferred upon the Supreme Court of the United States the power to decide disputed questions of boundary, or similar questions, between States of the Union, and proposed an amendment to remedy that difficulty, expressly recognizing that the right to resort to force in such cases necessarily resulted from the omission. The decision of the Supreme Court, in the case of _Rhode Island_ vs. _Ma.s.sachusetts_, that it possessed that jurisdiction, conjured that danger. The greater one, however, of there being no tribunal to administer justice between the federal and State sovereignties, remains.

I will also refer to one other resolution, pa.s.sed by the Legislature of the State of New York, on the 29th January, 1833, upon the Nullification Ordinances, as they were called:

"_Resolved_, That we regard the right of a single State to make void within its limits the laws of the United States, as set forth in the Ordinance of South Carolina, as wholly unauthorized by the Const.i.tution of the United States, and, in its tendency, subversive to the Union and the Government thereof."

I do not know that any sane man will now dispute that truth; but this follows. The present Secretary of State of the United States, at that time a member of the Senate of this State, then moved:

"That this Legislature do adhere, in their construction of the Const.i.tution, to the principle that the reserved rights of the States, not conceded to the General Government, ought to be _maintained and defended_."

This latter resolution was indefinitely postponed.

I will not now stop to read what was said by President Buchanan, in his Message to Congress, on December 4th, 1860, as to the consequences of a refusal by the States to repeal the obnoxious laws which had been enacted. You will recollect that he said that, if that was not done, the injured States would be justified, standing on the basis of the Const.i.tution, in revolutionary resistance to the Government of the Union. I do not need to claim that, for I have nothing to do, on this trial, with the justice of these mighty questions, debated between the General Government and the governments and people of these States. The question of their justice or injustice does not arise upon this trial.

I was simply making these citations to show that, by the ablest writers cotemporaneous with the Const.i.tution, and who performed the work of framing it--by the proceedings of legislative bodies and the decisions of the Supreme Court--the principle has been recognized that, in all cases in which jurisdiction has not been given to the judiciary over questions between the General Government and the State, they are equal, co-ordinate, each possessed of the right to decide for itself as to the excess by the other, if it is claimed that there is an excess of const.i.tutional power, and to a.s.sert its own right or repel the encroachments of the other by force.

I say, in further confirmation of this, that the offence of treason against the United States, under the 3d section of the 3d article of the Const.i.tution of the United States, must be a levying of war against them all. The words, "United States," in that section, mean the States, and not merely the Government of the Union. This is evident from the fact that the section, as originally reported (being sec. 2 of art. 7), read: "Treason against the United States shall consist only in levying war against the United States, OR ANY OF THEM; and in adhering to the enemies of the United States, OR ANY OF THEM," &c. (Journal of the Convention, page 221). It was amended so as to read collectively only, and not disjunctively. When, however, the act done is not under authority of a State, I concede that levying war against the General Government is levying war against all the States.

And, in this connection, I wish to refer to the proceedings, which I have hastily adverted to in opening to the Jury, upon the adoption of the section of the Const.i.tution relating to treason. I refer to the _Madison Papers_, vol. 3, page 1370:

"Art. 7, sec. 2, concerning treason, was then taken up.

"_Mr. Gouverneur Morris_ was for giving to the Union an exclusive right to declare what should be treason. In case of a contest between the United States and a particular State, the people of the latter must, under the disjunctive terms of the clause, be traitors to one or other authority.

"_Dr. Johnson_ contended that treason could not be both against the United States and individual States, being an offence against the sovereignty, which can be but one in the same community.

"_Mr. Madison_ remarked that as the definition here was of treason against the United States, it would seem that the individual States would be left in possession of a concurrent power, so far as to define and punish treason particularly against themselves, which might involve double punishment."

The words, "or any of them," were here stricken out by a vote.