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

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. * * *

"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 constituents 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 accumulate 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 Constitution of the United States. But while they yield to this authority, when exerted within constitutional 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 unconstitutional 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 Constitution 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 Constitution, 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 Constitution 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 Massachusetts against the War of 1812, adopted June 18th, 1813—from the American State Papers, vol. 21, page 210:

"The Legislature of Massachusetts, deeply impressed with the sufferings of their constituents, 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 Constitution, yet we fully concur in the correctness of the opinions advanced by our venerable Chief Magistrate, that our Constitution 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 constitutional 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, passed 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 Constitution 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. Massachusetts, 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, passed 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 Constitution 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 Constitution, 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 Constitution, 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 Constitution, 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 constitutional power, and to assert its own right or repel the encroachments of the other by force.