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

Now, the language of the Constitution is familiar to all of you. That it embodies the principle of a General Government acting upon all the States, and upon you, and upon me, and upon every one in the United States; that it has its own established Courts—its own mandate by which jurors are brought together—its own laws upon all the subjects that are attributed to its authority; that there is an establishment known as the Supreme Court, which, with the appropriate inferior establishments, controls and finally disposes of every question of law, and right, and political power, and political duty; and that this adjusted system of one nation with distributed local power, is, in its working, adequate to all the varied occasions which human life develops—we all know. We have lived under it, we have prospered under it, we have been made a great nation, an united people, free, happy, and powerful.

Now, gentlemen, it is said—and several points in our history have been appealed to, as well as the disturbances that have torn our country for the last year—that this complete and independent sovereignty of the States has been recognized. Now, there have been several occasions on which this subject has come up. The first was under the administration of the first successor of General Washington—John Adams,—when the famous Virginia and Kentucky resolutions had their origin. About these one of my learned friends gave you a very extensive discussion, and another frankly admitted that he could not understand the doctrine of the co-ordinate, equal sovereignty of two powers within the same State. On the subject of these Virginia resolutions, and on the question of whether they were the recognized doctrines of this Government, I ask your attention to but one consideration of the most conclusive character, and to be disposed of in the briefest possible space. The proposition of the Virginia resolutions was, that the States who are parties to the compact have the right and are in duty bound to interpose to arrest the progress of the evil (that is, when unconstitutional laws are passed), and to maintain, within their respective limits, the authority, rights, and liberties pertaining to them. That is to say, that where any law is passed by the Congress of the United States, which the State of Virginia, in its wise and independent judgment, pronounces to be in excess of the constitutional power, it is its right and duty to interpose. How? By secession? No. By rebellion? No. But by protecting and maintaining, within its territory, the authority, rights, and liberties pertaining to it. Now, these resolutions grew out of what? Certain laws, one called the "Alien" and the other the "Sedition" law, rendered necessary by the disturbances communicated by the French revolution to this country, and which necessarily came within the doctrine of my friend, Mr. Larocque, that there is not the least right of secession when the laws are capable of being the subject of judicial investigation. Well, those laws were capable of being the subject of judicial investigation, and the resolutions did not claim the right of secession, but of nullification. My learned friend says that the doctrine of "secession" has no ground.

But what was the fate of the "Virginia resolutions"? For Virginia did not pretend that she had all the wisdom, and virtue, and patriotism of the country within her borders. She sent these resolutions to every State in the Union, and desired the opinion of their legislatures and their governors on the subject. Kentucky passed similar resolutions; and Kentucky, you will notice, had just been made a State, in 1793—an off-shoot from Virginia; and, as the gentleman has told you, Mr. Madison wrote the resolutions of Virginia, and Mr. Jefferson those of Kentucky. So that there was not any great independent support, in either State, for the views, thus identical, and thus promulgated by these two Virginians. Their great patriotism, and wisdom, and intelligence, are a part of the inheritance we are all proud of. But, when the appeal was sent for concurrence to New York, South Carolina, Georgia, Massachusetts, and the New England States, what was the result? Why, Kentucky, in 1799, regrets that, of all the States, none, except Virginia, acquiesced in the doctrines; and the answers of every one of the States that made response are contained in the record which also contains the Virginia and Kentucky resolutions. And that doctrine there exploded, and exploded forever, until its recurrence in the shape of nullification, in South Carolina, as part of the doctrines of this Constitution.

We had another pressure on the subject of local dissatisfaction, in 1812; and then the seat of discontent and heresy was New England. I do not contend, and never did contend, in any views I have taken of the history of affairs in this country, that the people of any portion of it have a right to set themselves in judgment as superiors over the people of any other portion. I never have had any doubt that, just as circumstances press on the interests of one community or another, just so are they likely to carry their theoretical opinions on the questions of the power of their Government and of their own rights, and just so to express themselves. So long as they confine themselves to resolutions and politics, to the hustings and to the elections, nobody cares very much what their political theories are. But my learned friend Mr. Brady has taken the greatest satisfaction in showing, that this notion of the co-ordinate authority of the States with the nation, found its expression and adoption, during the war of 1812, in some of the States of New England. Well, gentlemen, I believe that all sober and sensible people agree that, whether or not the New England States carried their heresies to the extent of justifying the nullification of a law, or the revocation of their assent to the Confederacy, and their withdrawal from the common Government, the doctrines there maintained were not suitable for the strength and the harmony, for the unity and the permanency, of the American Government. I believe that the condemnation of those principles that followed, from South Carolina, from Virginia, from New York, and from other parts of the country, and the resistance which a large, and important, and intelligent, and influential portion of their own local community manifested, exterminated those heresies forever from the New England mind.

Next, we come to 1832, and then, under the special instruction and authority of a great Southern statesman, (Mr. Calhoun,) whose acuteness and power of reasoning have certainly been scarcely, if at all, surpassed by any of our great men, the State of South Carolina undertook, not to secede, but to nullify; and yet Mr. Larocque says, that this pet doctrine of Mr. Calhoun,—nullification, and nothing else,—is the absurdest thing ever presented in this country; and we are fortunate, I suppose, in not having wrecked our Union upon that doctrine.

Now we come, next, to the doctrine of secession. Nullification, rejected in 1798 by all the States, except Virginia and Kentucky, and never revived by them,—nullification, rejected by the sober sense of the American People,—nullification was put down by the strong will of Jackson, in 1832,—having no place to disturb the strength and hopes and future of this country. And what do we find is the proposition now put forward, as matter of law, to your Honors, to relieve armed and open war from the penalties of treason, and from the condemnation of a lesser crime? What is it, as unfolded here by the learned advocate (Mr. Larocque), with all his acuteness, but so manifest an absurdity that its recognition by a lawyer, or an intelligent Jury, seems almost impossible? It is this: This Union has its power, its authority, its laws. It acts directly upon all the individuals inside of every State, and they owe it allegiance as their Government. It is a Government which is limited, in the exercise of its power, to certain general and common objects, not interfering with the domestic affairs of any community. Within that same State there is a State government, framed into this General Government, to be certainly a part of it in its territories, a part of it in its population, a part of it in every organization, and every department of its Government. The whole body of its administration of law, the Legislature and the Executive, are bound, by a particular oath, to sustain the Constitution of the United States. But, although it is true that the State Government has authority only where the United States Government has not, and that the United States have authority only where the State has not; and although there is a written Constitution, which says what the line of separation is; and although there is a Supreme Court, which, when they come into collision, has authority to determine between them, and no case whatever, affecting the right or the conduct of any individual man, can be subtracted from its decision; yet, when there comes a difference between the State and the General Government, the State has the moral right, and political right, to insist upon its view, and to maintain it by force of arms, and the General Government has the right to insist upon its view, and to maintain it by force of arms. And then we have this poor predicament for every citizen of that unlucky State,—that he is bound by allegiance, and under the penalty of treason, to follow each and both of these powers. And as, should he follow the State, the United States, if it be treason, would hang him, and, if he should follow the United States, the State, if it be treason, would hang him, this peculiar and whimsical result is produced,—that when the United States undertake to hang him for treason his answer is—"Why, if I had not done as I did, the State would have hanged me for treason, and, surely, I cannot be compelled to be hanged one way or the other—so, I must be protected from hanging, as to both!" Well, that, I admit, is a sensible way to get out of the difficulty, for the man and for the argument, if you can do it. But, it is a peculiar result, to start with two sovereigns, each of which has a right over the citizen, and to end with the citizen's right to choose which he shall serve, and to throw it in the face of offended majesty and justice—"Why, your statute of treason is repealed as against me, because the State, of which I am a subject, has counseled a particular course of conduct!"

Now, gentlemen, my learned friend qualifies even this theory—which probably must fall within the condemnation of the perhaps somewhat harsh and rough suggestion of Mr. Justice Grier, of a "political platitude"—by the suggestion that it only applies to questions where the united States cannot settle the controversy. And when my learned friend is looking around for an instance or an occasion that is likely to arise in human affairs, and in this nation, and in this time of ours, he is obliged to resort to the most extraordinary and extravagant proposition by way of illustration, and one that has, in itself, so many of the ingredients of remoteness and impossibility, that you can hardly think a Government deficient in not having provided for it. He says, first—suppose we have a President, who is a Massachusetts man. Well, that is not very likely in the course of politics at present. And then, suppose that he is a bad man,—which, probably, my learned friends would think not as unlikely as I should wish it to be. And, then, suppose he should undertake to build up Boston, in its commerce, at the expense of New York; and should put a blockading squadron outside New York, by mere force of caprice and tyranny, without any law, and without any provision for the payment of the men of the Navy, or any commission or authority to any of them under which they could find they were protected for what they should do, in actually and effectually blockading our port. My learned friend acknowledges that this is a pretty violent sort of suggestion, and that no man in his senses would pretend to do such a thing, however bad he was, unless he could find a reasonable sort of pretext for it. Therefore he would, wisely and craftily, pretend that he had private advices that England was going to bombard New York. Now that is the practical case created by my learned friend's ingenuity and reflection, as a contingency in which this contest by war between New York and the United States of America would be the only practical and sensible mode of protecting our commerce, and keeping you and me in the enjoyment of our rights as citizens of the State of New York. Well, to begin with, if we had a fleet off New York harbor, what is there that would require vessels to go to Boston instead of to Philadelphia, Baltimore, and other places that are open? In the second place, how long could we be at war, and how great an army could we raise in New York, to put in the field against the Federal Government, before this pretence of private advices that England was going to bombard New York, would pass away, and the naked deformity of this bad Massachusetts President be exposed? Why, gentlemen, it is too true to need suggestion, that the wisdom which made this a Government over all individual citizens, and made every case of right and interest that touches the pocket and person of any man in it a question of judicial settlement, made it a Government which requires for the solution of none of the controversies within it, a resort to the last appeal—to battle, and the right of kings.

(Adjourned to 11 o'clock to-morrow.)

SEVENTH DAY

Wednesday, October 30, 1861.

The Court met at 11 o'clock A.M., when Mr. Evarts resumed his argument.

Gentlemen of the Jury: In resuming the course of my remarks, already necessarily drawn to a very considerable length, I must recall to your attention the point that I had reached when the Court adjourned. I was speaking of this right of secession, as inconsistent with the frame, the purpose, and the occasion upon which the General Government was formed; and of the illustration invented by my learned friend, and so improbable in its circumstances, of the position of the United States and one of the States of the Union, that could bring into play and justify this resort to armed opposition. I had said what I had to say, for the most part, as to the absurdity and improbability of the case supposed, and the inadequacy, the worthlessness, the chimerical nature of the remedy proposed. Now, you will observe that, in the case supposed, the blockade of New York was to be without law, without authority, upon the mere capricious pretence of the President—a pretence so absurd that it could not stand the inspection of the people for a moment. What is the use of a pretence unless it is a cover for the act which it is intended to cloak? In such a case, the only proper, peaceful course would be to raise the question, which might be raised judicially, by attempting, in a peaceful manner, to pass the blockade, and throw the consequences upon the subordinate officers who attempted to execute the mere usurpation of the President, and, following the declaration of the Divine writings, that "wisdom is better than weapons of war," wait until the question could be disposed of under the Constitution of the United States. For you will observe that, in the case supposed, there is no threat to the integrity, no threat to the authority, no threat to the existence of the State Government, or its Constitution; but an impeding of the trade or interests of the people of this city, and of the residents of all parts of the country interested in the commerce of New York. That port is not the port of New York alone. It is the port of the United States of America, and all the communities in the Western country, who derive their supplies of foreign commodities through our internal navigation, when commerce has introduced them into this port, are just as much affected—just as much injured and oppressed—by this blockade of our great port and emporium, as are the people of the State of New York. So that, so far from its being a collision between the Government of the State of New York and the Government of the United States, it is a violent oppression, by usurpation—exposing to the highest penalties of the law the magistrate who has attempted it—exercised upon the people of the United States wherever residing, in the far West, in the surrounding States, in the whole country, who are interested in the maintenance of the commerce of this port. I need not say that the action of our institutions provides a ready solution for this difficulty. Two or three weeks must bring to the notice of every one the frivolity of the pretence of the Executive, that there was a threat of armed attack by a foreign nation. But if two or three weeks should bring the evidence that this was not an idle fear, and that, by information conveyed to the Government, this threat was substantial, and was followed by its attempted execution,—why, then, how absurd the proposition that, under the opinion of the State of New York, that this was but an idle pretext, for purposes of oppression, the State should fly into arms against the power exercised to protect the city from foreign attack! The working of our affairs, which brings around the session of Congress at a time fixed by law—not at all determinable by the will of the President—exposes him to the grand inquest of the people, which sits upon his crime, and, by his presentation and trial before the great Court of Impeachment, in the course of one week—nay, in scarcely more than one day after its coming into session—both stamps this act as an usurpation, and dispossesses the magistrate who has violated the Constitution. And yet, rather than wait for this assertion of the power of the Constitution peacefully to depose the usurping magistrate, my friend must resort to this violent intervention of armed collision, that would keep us—in theory, at least—constantly maintaining our rights by the mere method of force, and would make of this Government—at the same time that they eulogize the founders of it, as the best and wisest of men—but an organization of armed hostilities, and its framers only the architects of an ever-impending ruin!

My learned friend, Mr. Brady, has asked my attention to the solution of a case wherein he thinks the State Government might be called upon to protect the rights of its citizens against the operation of an Act of Congress, by proposing this question: Suppose Congress should require that all the expenses of this great war, as we call it, should be paid by the State of New York,—what should we do in that case? Nothing but hostilities are a solution for that case, it is suggested. Now, I would freely say to my learned friend, Mr. Brady, that if the General Government, by its law, should impose the whole taxation of the war upon the State of New York, I should advise the State of New York, or any citizen in it, not to pay the taxes. That is the end of the matter. And I would like to know if there is any warlike process by which the General Government of the United States exacts its tribute of taxation, that could impose the whole amount on New York? As the process of taxation goes on, it is distributed through different channels, and presents itself as an actual and effective process, from the tax-gatherer to the tax-payer: "Give me so many dollars." And the tax-payer says: "There is no law for it, and I will not do it." Then the process of collection raises for consideration this inquiry—whether the tax is according to law, and according to the constitutional law of the United States of America. And this tribunal, formed to decide such questions—formed to settle principles in single cases, that shall protect against hostilities these great communities—disposes of the question. If the law is constitutional, then the tax is to be paid—if unconstitutional, then the tax is not collectable; and the question is settled. But my learned friends, in their suggestions of what is a possible state of law that may arise in this country, forget the great distinction between our situation under the Federal Government and our situation as Colonies under the authority of the King and Parliament of England. It is the distinction between not being represented and being represented.

Why, my learned friends, in order to get the basis of a possible suggestion of contrariety of duty and of interest between the Government of the United States and the people in these States, must overlook, and do overlook the fact that there is not a functionary in the Federal Government, from the President down to the Houses of Congress, that does not derive his authority from the people, not of one State, not of any number of States, but of all the States. And thus standing, they are guardians and custodians, in their own interests—in their own knowledge of the interests of their own people—in their own knowledge that their place in the protection, power, and authority of the Government of the United States, proceeds by the favor and the approval of the local community in which they reside. So far, therefore, from anything in the arrangement or the working of these political systems being such as to make the Representatives or Senators that compose Congress the masters or the enemies of the local population of the States from which they respectively come, they come there under the authority of the local population which they represent, dependent upon it for their place and continuance, and not on the Federal Government.

Away, then, with the notion, so foreign to our actual, constituted Government, that this Government of the United States of America is a Government that is extended over these States, with an origin, a power, a support independent of them, and that it contains in itself an arrangement, a principle, a composition that can by possibility excite or sustain these hostilities! Why, every act of Congress must govern the whole Union. Every tax must, to be constitutional, be extended over the whole Union, and according to a fixed ratio of distribution between the States, established by the Constitution itself. Now, therefore, when any particular interest, any particular occasion, any supposed necessity, any political motive, suggests a departure, on the part of the General Government, from a necessary adherence to this principle of the Constitution, you will perceive that not only are the Representatives and Senators who come from the State against which this exercise of power is attempted, interested to oppose, in their places in Congress, the violation of the Constitution, but the Representatives and the Senators from every other State, in support of the rights of the local communities in which they reside, have the same interest and the same duty, and may be practically relied upon to exercise the same right, and authority, and opposition, in protection of their communities, against an application of the same principle, or an obedience to the same usurpation, on subsequent occasions, in reference to other questions that may arise. Therefore, my learned friends, when they are talking to you, theoretically or practically, about the opposition that may arise between co-ordinate and independent sovereignties, and would make the glorious Constitution of this Federal Government an instance of misshapen, and disjointed, and impractical inconsistencies, forget that the great basis of both of them rests in the people, and in the same people—equally interested, equally powerful, to restrain and to continue the movements of each, within the separate, constitutional rights of each. Now, unquestionably, in vast communities, with great interests, diverse and various, opinions may vary, and honest sentiments may produce the enactment of laws of Congress, which equally honest sentiments, on the part of local communities, expressed through the action of State legislation, may regard as inconsistent with the Government and the Constitution of the United States, and with the rights of the States. But, for these purposes, for these occasions, an ample and complete theoretical and practical protection of the rights of all is found, in this absolute identity of the interests of the people and of their authority in both the form and the structure of their complex Government, and in the means provided by the Constitution itself for testing every question that touches the right, the interest, the liberty, the property, the freedom of any citizen, in all and any of these communities, before the Supreme Court of the United States. Let us not be drawn into any of these shadowy propositions, that the whole people may be oppressed, and not a single individual in it be deprived of any personal right. Whenever the liberty of the citizen is abridged in respect to any personal right, the counsel concede that the Courts are open to him; and that is the theory, the wisdom, and the practical success of the American Constitution.