Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York

"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."