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

The Southern States, standing on the basis of the Constitution, have a right to demand this act of justice from the States of the North. Should it be refused, then the Constitution, to which all the States are parties, will have been willfully violated, in one portion of them, in a provision essential to the domestic security and happiness of the remainder. In that event, the injured States, after having first used all constitutional and peaceful means to obtain redress, would be justified in revolutionary resistance to the Government of the Union.

What, in the meantime, is the responsibility and true position of the Executive? He is bound by a solemn oath before God and the country "to take care that the laws are faithfully executed;" and from this obligation he cannot be absolved by any human power. But what if the performance of this duty, in whole or in part, has been rendered impracticable by events over which he could have exercised no control? Such, at the present moment, is the case throughout the State of South Carolina, so far as the laws of the United States, to secure the administration of justice by means of the federal judiciary, are concerned. All the federal officers within its limits, through whose agency alone these laws can be carried into execution, have already resigned. We no longer have a District Judge, a District Attorney, or a Marshal, in South Carolina. In fact, the whole machinery of the Federal Government, necessary for the distribution of remedial justice among the people, has been demolished, and it would be difficult, if not impossible, to replace it.

The only Acts of Congress upon the Statute Book bearing on this subject are those of the 28th February, 1795, and 3d March, 1807. These authorize the President, after he shall have ascertained that the Marshal, with his posse comitatus, is unable to execute civil or criminal process in any particular case, to call forth the militia, and employ the army and navy to aid him in performing this service—having first, by proclamation, commanded the insurgents to disperse and retire peaceably to their respective homes within a limited time. This duty can not by possibility be performed in a State where no judicial authority exists to issue process, and where there is no Marshal to execute it, and where, even if there were such an officer, the entire population would constitute one sole combination to resist him.

The bare enumeration of these provisions proves how inadequate they are, without further legislation, to overcome a united opposition in a single State, not to speak of other States who may place themselves in a similar attitude. Congress alone has power to decide whether the present laws can or can not be amended, so as to carry out more effectually the objects of the Constitution.

The course of events is so rapidly hastening forward, that the emergency may soon arise when you may be called upon to decide the momentous question, whether you possess the power, by force of arms, to compel a State to remain in the Union. I should feel myself recreant to my duty were I not to express an opinion upon this important subject.

The question, fairly stated, is: Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw, or has virtually withdrawn, from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection, I have arrived at the conclusion that no such power has been delegated to Congress, or to any other department of the Federal Government. It is manifest, upon an inspection of the Constitution, that this is not among the specific and enumerated powers granted to Congress; and it is equally apparent that its exercise is not "necessary and proper for carrying into execution" any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution.

It appears, from the proceedings of that body, that on the 31st May, 1787, the clause authorizing the exertion of the force of the whole against a delinquent State came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed: "The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound." Upon his motion, the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: "Any Government for the United States, founded upon the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the Government of Congress"—evidently meaning the then existing Congress of the old Confederation.

Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution.

VIIIPROCLAMATION OF AUGUST 16, 1861, PURSUANT TO ACT OF CONGRESS OF JULY 13, 1861

Whereas, on the 15th day of April, the President of the United States, in view of an insurrection against the laws and Constitution and Government of the United States, which had broken out within the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, and in pursuance of the provisions of the Act entitled "An Act to provide for calling forth the militia to execute the laws of the Union, to suppress insurrection and repel invasion, and to repeal the Act now in force for that purpose," approved February 18th, 1795, did call forth the militia to suppress said insurrection and cause the laws of the Union to be duly executed, and the insurgents having failed to disperse by the time directed by the President, and—

Whereas such insurrection has since broken out and yet exists within the States of Virginia and North Carolina, Tennessee and Arkansas, and—

Whereas the insurgents in all of the said States claim to act under authority thereof, and such claim is not disclaimed or repudiated by the person exercising the functions of Government in each State or States, or in the part or parts thereof in which combinations exist, nor has such insurrection been suppressed by said States—

Now, therefore, I, Abraham Lincoln, President of the United States, in pursuance of an Act of Congress passed July 13th, 1861, do hereby declare that the inhabitants of the said States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida, except the inhabitants of that part of the State of Virginia lying west of the Alleghany Mountains, and of such other parts of that State and the other States hereinbefore named as may maintain a loyal adhesion to the Union and the Constitution, or may be, from time to time, occupied and controlled by the forces engaged in the dispersion of said insurgents, are in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with the exception aforesaid, and the citizens of other States, and other parts of the United States, is unlawful, and will remain unlawful until such insurrection shall cease or has been suppressed; that all goods and chattels, wares and merchandize, coming from any of the said States, with the exceptions aforesaid, into other parts of the United States, without a special license and permission of the President, through the Secretary of the Treasury, or proceeding to any of the said States, with the exceptions aforesaid, by land or water, together with the vessel or vehicle conveying the same, or conveying persons to or from States, with the said exceptions, will be forfeited to the United States; and that, from and after fifteen days from the issue of this proclamation, all ships and vessels belonging in whole or in part to any citizen or inhabitant of any State, with the said exceptions, found at sea, or in any port of the United States, will be forfeited to the United States; and I hereby enjoin on all District Attorneys, Marshals, and officers of the revenue and of the military and naval forces of the United States, to be vigilant in the execution of said Act, and in the enforcement of the penalties and forfeitures imposed or declared by it, leaving any party who may think himself aggrieved thereby the right to make application to the Secretary of the Treasury for the remission of any penalty or forfeiture, which the said Secretary is authorized by law to grant, if, in his judgment, the special circumstances of any case shall require such remission.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done in the City of Washington, this 16th day of August, in the year of our Lord 1861, and of the independence of the United States the eighty-sixth.

ABRAHAM LINCOLN.

Wm. H. Seward, Secretary of State.

1

At the request of the United States District Attorney, the publishers state that the Indictment was mainly the work of Mr. John Sedgwick, of the New York bar.

2

The second trial of Gordon, resulting in a conviction, took place before a full Court, Mr. Justice Nelson sitting with Judge Shipman.

3

"Gone along, caught along, hanged along."

4

An interesting fact, not published previously, I believe, has been communicated to the public recently by Mr. Dawson, of New York, a historical student and writer of great research and culture. He has found an original minute in the records of the General Court of Massachusetts, whereby, as early as May 1st, 1776, the sovereignty and independence of that Colony was declared formally.

5

See pages 105, 106, and 107.