Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 39

"It is evident that, by the very act of the civil or political a.s.sociation, 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 Const.i.tution, the States should be regarded as distinct and independent sovereigns?

They are so regarded by the Const.i.tution 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 a.s.sembly 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 Const.i.tution; 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 pa.s.sed:

"_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 a.s.sembly."

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 Const.i.tution).

* * * 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 s.h.i.+p'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_ a.s.sented.

Adjourned to Sat.u.r.day, October 26th, at 11 A.M.

FOURTH DAY.

_Sat.u.r.day, 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 Const.i.tution of the United States, each possess the jurisdiction to decide whether their respective acts are within or exceed the limits of their respective const.i.tutional 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 Const.i.tution 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 Const.i.tutions respectively, to the Federal and State Governments respectively, and each having the jurisdiction to judge whether its acts are within the const.i.tutional limit of its own powers, has also necessarily the right to employ force in their a.s.sertion 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 const.i.tutional powers, and each possessing the jurisdiction to determine for him the compound question of law and fact, whether the const.i.tutional 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 a.n.a.logy whatever to the right, once claimed and most successfully refuted, of the inhabitants of a State, in Convention, to decide by ordinance upon the unconst.i.tutionally 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 unconst.i.tutional was strictly an instance of this latter cla.s.s. The citizen from whom the duties were claimed could simply refuse to pay, and thereby refer the question of const.i.tutionality of the law to the judicial tribunals to which it properly belonged, and which must necessarily pa.s.s 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 cla.s.s 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 const.i.tutional 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 cla.s.s of cases referred to.

He says:

"I do not forget the position a.s.sumed by some, that const.i.tutional 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 ent.i.tled 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 a.s.sault 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 doc.u.ment 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 Const.i.tution, 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 Inst.i.tutes 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 Inst.i.tutes 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 circ.u.mstances 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 const.i.tution 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 G.o.d; and it does not extend beyond the limits which either the civil const.i.tution 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 circ.u.mstances 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.