_Mr. Lord_, of counsel for the defence, said:
May it please your honors,--The distribution of duties which counsel
for the defence have made among themselves is, that I shall briefly
present the propositions of law, somewhat irrespective of the wide
political range which my friends seem to think is to be involved. I
shall not pursue even the field which Mr. Larocque has opened, knowing
that he has cultivated it to a far greater degree than I have, and
therefore I will leave it to him to till. My friend, Mr. Brady, will
address the Jury on any questions of fact that may be supposed to be
involved.
Before I enter upon the discussion, and with the view that this case
may be relieved from one prejudice which probably every man has felt on
first hearing of it, I beg leave to set ourselves all right on the idea
that there is something different in a private armed ship from a public
armed vessel, in the law, and in the view of the people of the country.
I desire to read on that subject a letter from Mr. Marcy to the Count
de Sartiges.
_Mr. Lord_ read the letter, and continued:
Therefore in this discussion, so far from a private armed vessel being
regarded with disfavor, it is regarded, and has to be regarded, with
all the favor which would belong to it as a regularly commissioned
cruiser, belonging to the State, and not to the individual.
I now approach, with all the brevity due to your valuable time, the
question of jurisdiction. It seems to me to be very clear indeed that
after Harleston and the crew, of the Savannah were taken by the Perry,
he was confined as a prisoner, as one of a crew of a piratical vessel,
for an act charged as piratical, on board the United States ship-of-war
Minnesota, by order of its commander. That Harleston was taken by the
said commander into the District of Virginia, within a marine league of
its shores, where the said ship remained; and the said Harleston and
the other prisoners could have been there landed and detained for
trial. If the facts are so, the Circuit Court of this District has no
jurisdiction, and the prisoners should be acquitted.
The evidence of our friend, Commodore Stringham, on that subject,
leaves us no doubt as to the character of the arrest. After seeing the
Perry close in to Charleston, she having been ordered by him to cruise
further off, and he, wondering what she was doing there--he says:
"She hailed us and informed us she had captured a piratical vessel.
The vessel was half a mile astern. Captain Parrot, of the Perry,
came and made to me a report of what had taken place. I ordered him
to send the prisoners on board, and I sent a few men on board the
Savannah to take charge of her during the night. The vessels were
then anchored. Next morning I made arrangements to put a prize crew
on board the Savannah and send her to New York, and I directed the
Captain of the Joseph to take passage in her. I took the prisoners
from the Perry, and directed the Perry to proceed," &c.
Again he testifies:
"_Q._ What was your object in transferring the prisoners from the
Perry to the Minnesota?
"_A._ Sending them to a Northern port. The port of New York was the
port I had in my mind to send them to, in the first ship from the
station."
The prisoners, thus taken from a piratical vessel, he determined to
carry to Norfolk, and to send them thence to the North for trial.
Now, if your honors please, my learned friend (Mr. Evarts) seems to say
that there is no authority in law for a United States vessel to arrest
pirates at sea; but if you will read the President's proclamation of
19th June you will find that he speaks of dealing with the persons who
may be taken on board private armed ships as pirates. I will then ask
to direct your attention to the Act of 1819 (3d Vol. Statutes, p. 510),
where the President is authorized to employ public armed vessels to
arrest offenders against that law. Therefore the capture of the prize
was not only a part of the general law of nations, but it was
particularly a thing which the commanders of ships of the United States
were charged by the proclamation of the President, and by Act of
Congress, to do.
I now approach the other question, as to where these prisoners were
apprehended, or into what District they were first brought. That they
were apprehended by a warrant from the United States Commissioner in
New York, is not in dispute. The question, however, is, where they were
first brought. If an officer having them in charge could anchor his
vessel at Baltimore, and then at Philadelphia, and then bring his
prisoners to New York, it would be putting the law entirely in his
hands and dissipating all its force. In ordinary cases of crime the
jurisdiction is local; and that for many reasons. One is, that a man is
to be tried by his peers--meaning those of his own neighborhood,--and
that it is easier to procure evidence at the place where the crime is
committed. The law does not give to any man the power of assigning the
place of trial. In the case of offences committed on the high seas, the
law declares that the accused shall be tried in the District into which
he is first brought.
Now, that tnese men were held by Capt. Stringham for the purpose of
being tried as pirates, the evidence is clear. They were transferred
from the Perry to the Minnesota, taken to the Norfolk station, and
there kept in irons on board the Minnesota till they were transferred
to the Harriet Lane. Could they have been detained there for trial? It
might be an inconvenience if there was no Court. They might have had to
be detained for a long time, or Congress might pass some law varying
the jurisdiction. But as the law stood, if these men could have been
landed and detained for trial, then that was the District in which they
were necessarily to be tried. Can any one say that it was not as easy
to have landed these men at Fortress Monroe, or at Hampton, as to
transfer them to the Harriet Lane? And could they not have been
detained there? You did not need a Court to detain them. They were
taken by force, and might have been detained in the fortress till a
trial should be had. There was no difficulty in their being landed in
Virginia; and, moreover, there were in Western Virginia loyal Courts,
where they could be tried.
Now, what is there that takes away the jurisdiction which belongs to
that part of the country and not to this? "Why," says Captain
Stringham, "I wanted to send them to New York." But had he any right to
do so, when he had actually brought them to that station where his ship
belonged, and where he was bound to keep her unless he returned her to
the cruising ground? Remember that his ship remained there some time
before the transfer was made. They were detained as prisoners there,
and might as well have been detained on shore. Therefore, it seems to
me, that unless the capturing officer, and not Congress, has the right
to determine the place where the trial shall be had, these men were to
be tried in the District of Virginia.
Now, it is no answer to this to say that, where a vessel is sailing
along the shores of a District, a prisoner on board is not brought
there in the proper sense of the word. The ship is not bound to stop
and break up her voyage in order to have the Court designated where he
is to be tried; but where the ship comes into port--where she stops at
a port--I submit to your honors that this is the bringing contemplated
by the statute.
I now approach, if your honors please, the merits of this case. The
indictment is founded on two sections of the Crimes Act, originally two
separate and very distinct statutes. It is the eighth section which
makes robbery on the high seas piracy. That embraces the first five
counts of the indictment, which are varied in mere circumstances. The
remaining counts rest on the transcript into the legislation of this
country, from the Act of 11 and 12 William III., to the effect,
substantially, that if any citizen of the United States shall, under
color of a commission from any foreign Prince or State, or under
pretence of authority from any other person, commit acts of hostility
against the United States, or the citizens thereof, that shall be
piracy. In the argument which I shall address to your honors I will beg
leave to characterize the first as piracy by the laws of nations, and
the second as statutory piracy. But, before I discuss that subject,
permit me to say that, as to eight of these prisoners, it is conceded
that they do not come under that section, as the evidence for the
prosecution shows that they were not citizens of the United States. So
that, as to these eight, unless they are adjudged pirates under the
eighth section, they must be acquitted, if they can justify themselves
under the commission.
_Judge Nelson_: Then the other four, you say, can only be convicted
under the ninth section?
_Mr. Lord_: Yes; that is the statutory process, if I may be permitted
to give it that name.
The act is charged as an act of robbery, not as an act of treason. It
is not alleged to have been done treasonably. If the prosecution wanted
to give it that character, they must have alleged it to be treason.
They must have alleged that this act, done on the high seas, was done
treasonably, traitorously, and therefore piratically. They have alleged
no such thing. I take pleasure in saying that the District Attorney, in
opening this case, did it with great fairness, and disavowed any idea
of introducing treason into the case. There are many reasons why, if
that were pretended, this whole trial should stop. The requisites of a
prosecution for treason have not been, in any degree, complied with.
The charge is robbery. It may be charged as done piratically, involving
_animus furandi_. Let us see, for an instant, what piratical is. Piracy
is, by all definitions, a crime against all nations. It enters into
every description of a pirate that he is _hostis humani generis_. That
is the common-law idea of piracy. It is not a political heresy that
will make piracy. It is not a political conformity that will always
exempt from the charge of piracy. For instance, if the officer of a
Government vessel, with the most full and complete commission, such as
my friend Commodore Stringham had, should invade a ship at sea, and
should, under pretence of capture, take jewels and secrete them, not
bringing them in for adjudication, he would be a pirate, because,
though he held a commission, he did the act _animo furandi_,--did it
out of the jurisdiction of any particular country,--did it against the
great principles of civilization and humanity.
Again, if a commissioned vessel hails a private ship, and, on the idea
that she is a subject of prize, captures her, and it turns out that
that capture is illegal and unwarranted, that fact does not make the
act piracy. Although the act might be ever so irregular--although it
might subject the officer to the severest damages for trespass--yet it
is not piratical, and the officer is not to be hung at the yard-arm
because he mistakes a question of law. Your honors therefore see how
utterly it enters into the whole subject that the thing shall be done
_animo furandi_, piratically, as against the general law of nations and
the sense of right of the civilized world.
Well, now, we are at once struck with this consideration: Suppose the
act is regarded as not piratical by millions of people having civilized
institutions, having Courts of Justice, giving every opportunity for a
trial of the question of forfeiture or no forfeiture--why, it shocks
the moral sense to say that that is done _animo furandi_, that it is a
theft and a robbery, and that the man who does it is an enemy to the
human race. Carry the idea a little further, and you find that the
commission under which a man acts in seizing a vessel with a view of
bringing it in as a prize is regarded by all the great commercial
nations of the world as regular, and that the act is regarded not as a
piratical, but as a belligerent act. Does it not shock the very
elements of justice to have it supposed that in such a case the man
acting under the commission, and within its powers, is to be deemed an
enemy of the whole human race, while all the human race, except the
power which seeks to subject him to punishment, says the act is not
piratical?
Now, upon this subject my learned friends have cited many authorities,
which all bear on the effect of what should give validity to the
transfer of captured property under the circumstances of rebellions in
States. Now I beg leave, at the outset of the consideration of this
case, to say that the question of passing title to property is a thing
entirely different from the question of hanging a man for committing a
crime. In the first place, look at the numerous acts of trespass which
are committed on the high seas by vessels of every nation. The books
are full of cases of marine trespass, and of damages against captors
for their irregularities; but are the authorities which bear upon that
subject, which is a mere question of property--a question of title--of
the mere transfer of title--are they authorities which decide the
question that a man should be hanged if he mistakes the law, or if he
acts under the impulse of a wrong judgment as to the sovereign which he
should serve? I would call your attention to the case of Klintock,
reported in the 5th of Wheaton, where the Court say that they will not
regard the commission of General Aubrey as sufficient to give title to
the property, "although it might be sufficient to defend him from a
charge of piracy." I also refer to Phillimore on International Law,
vol. 3, p. 319. [Counsel read from the authority.]
Now, under what circumstances was this done? And in the discussion I
give to this question I am entirely free from the necessity of
considering how the Government of this country shall regard the seceded
States,--as having a Government, or not. I am under the law of nations,
because this act which I am now discussing, of robbery on the high
seas, was evidently a transcript of the law of nations upon the subject
of piracy. What are the undeniable facts?--the facts about which, in
this case, there is not any dispute, either in this country or in the
whole world--about which there is but one opinion--what are they? At
the time the crew of the Savannah shipped for this cruise, and at the
time of the capture of the Joseph, the authorities of the State of
South Carolina (for the State of South Carolina had an organization
from its beginning, as a part of this country, and, as a government,
was well known to the Government of the United States)--the authorities
of the State of South Carolina, where the Savannah was fitted out and
the crew resided, had become parties to a confederation of others of
the United States. Now it is immaterial to me, in the light in which I
view this case, whether that was politically right or not--whether it
was legally right or not--whether this country could look at it as a
source of title to property or not; the fact is there, that a
State--one of the original, recognized States of the Union--united
itself, under an assumption of authority, revolutionary if you please,
with other similar States, and formed a league and a Government. That
fact is undoubtedly so. Under such confederation a Government, in fact,
existed, and exercised, in fact, the powers of civil and military
Government over the territories and peoples of those States, or a
principal part of them. Here we have eleven recognized States, doing,
if you please, an illegal thing, when you come to submit it to the just
principles of law. They form a league,--against an Act of
Congress,--but they do form a league, and do constitute a Government;
and this Government takes possession of a territory of some ten
millions of people, all of whom submit to it. It maintains the
Government in its domestic character of States, and originates a
Government for its foreign relations. It assumes to make war, and
declares war. The President's proclamation says that the said
Confederated States had in fact declared war against the United States
of America, and were openly prosecuting the same with large military
forces, under the military and civil organization of a Government; and
had assumed, and were in the exercise of, the power of issuing
commissions to private armed ships to make captures of the property of
the United States, and the citizens thereof, as prize of war, and to
send them into Court for adjudication as such. Now, all that is beyond
any doubt; and is it possible that it can be contended that an act of
that vast extent, of that wide publicity and great power, should fail
even to justify the killing of a chicken, without charge of petty
larceny? Does it not shock the common sense of mankind that, in the
case of men dwelling there, and acting in subordination to the existing
Government (you cannot say whether voluntarily or not), for every shot
fired and man killed you could have a trial for murder; that for every
horse shot you could have an action of trover; and for every trespass
you could have an action of trespass? This practically shocks us. How
is it in view of the doctrine of _hostis humani generis_? Here are ten
millions of people doing acts which, if done only by three or four,
would be murders and treasons. But justice must be equal. If required
to execute justice upon three or four, you are bound to execute it on
tens of millions? Why, that is the very thing which publicists tell us
constitutes civil war. A civil war is always a rebellion when it
begins. In the first instance it commences with a few individuals,--the
Catalines of the country; but when it gets to be formed, so that a
large force is collected, and, instead of the Courts of Justice before
existing, it substitutes Courts of its own, then comes up the doctrine
of humanity which belongs to the laws of war,--that you can no longer
speak of it as a rebellion. In the judgments of publicists when a
rebellion gets to that head that it represents States, and parts of a
nation, humanity stops the idea of private justice, and it goes upon
the principle of public and international law. That will be found
elaborately stated in Vattel; but I do not intend to trouble you with
any lengthened reading of citations. I refer to the 18th chap. on the
subject of civil war, page 424:
"When a party is formed in a State, who no longer obey the
sovereign, and are possessed of sufficient force to oppose him; or
when, in a Republic, the nation is divided into two opposite
factions, and both sides take up arms,--this is called a _civil
war_. Some writers confine this term to a just insurrection of the
subjects against their sovereign, to distinguish that lawful
resistance from _rebellion_, which is an open and unjust
resistance. But what appellation will they give to a war which
arises in a Republic torn by two factions, or in a Monarchy,
between two competitors for the crown? Custom appropriates the term
of '_civil war_' to every war between the members of one and the
same political society. If it be between the part of the citizens,
on the one side, and the sovereign, with those who continue in
obedience to him, on the other,--provided the malcontents have any
reason for taking up arms, nothing further is required to entitle
such disturbance to the name of _civil war_, and not _rebellion_.
This latter term is applied only to such an insurrection against
lawful authority as is void of all appearance of justice. The
sovereign, indeed, never fails to bestow the appellation of
_rebels_ on all such of his subjects as openly resist him; but,
when the latter have acquired sufficient strength to give him
effectual opposition, and to oblige him to carry on the war against
them according to the established rules, he must necessarily submit
to the use of the term 'civil war.'"
The moment the term "civil war" comes up, the idea of punishing, as
rebellion or as piracy, the capture of a vessel, is an abuse of
justice; and it is not only an abuse of justice, but it is an abuse of
the fact, to say that those who are large enough to be a nation are to
be considered as the enemies of all nations, because they undertake to
make civil war. The point is not founded upon any technical
considerations; it is founded upon the great doctrines of humanity and
civilization. Because, what is to be the end of it? If we hang twelve
men, they hang one hundred and fifty-six. If we treat them as rebels,
why they treat our captured forces as these rebels are treated. You
bring on a war without any civilizing rules. You bring in a war of
worse than Indian barbarity. You bring in a war which can know nothing
except bloodshed, in battle or upon the block. This is not a technical
notion. It is that, when civil war is found to exist (and that
altogether comes from the magnitude of the opposition), then the rules
of war apply, as much as in any public war, so far as to protect the
individuals acting under them. What would be said if you should take a
gentleman who was made prisoner at Fort Hatteras, and try him for
treason, and hang him? What would be said in this country, or in
Europe,--what would be said anywhere, in the present or in future
ages,--as to an act like that? Well, why not? Because justice must be
equal. If you do it to one, you must do it to all. If you do it to all,
you carry on an extermination of the human race, against all the
principles which can animate a Court of Justice, or find a seat in the
human bosom. Therefore, if we have the fact of civil war, we have the
rules of war introduced.
Now, is this a civil war? I do not ask the question of how this country
simply should regard it; but on the question in a Criminal Court, as to
whether a civil war exists so as to give protection to those who act on
one side of it, I have the concurrent judgments of the Courts. Judge
Dunlop, in the case of the Tropic Wind, says there can be no blockade
except in a case of war; that this is a civil war, and therefore there
is a blockade. Judge Cadwalader says this is a civil war, and in civil
war you may make captures; and Judge Betts, in a vastly profitable
judgment, delivered in the other room, confiscating millions of
property of Union men in the South, says that this is civil war. Now,
if the Government of the United States forfeits the property of persons
residing in these seceded States, without the formality of a trial for
treason, because it is simply enemy's property, with what pretence can
they set up the principle that they will not treat them as enemies?
They will treat them as enemies, for the purpose of confiscation, and
not as enemies, but as traitors and pirates, for the purpose of
execution? Why, it is a glaring inconsistency. It strikes us off our
feet as a people fit to be looked at by any impartial or rational
person, in political jurisprudence.
We submit, therefore, that there was a civil war. Then what was the
taking of the Joseph? I now pass by the Savannah's commission for a
moment. The capture of the Joseph was in this way: The Joseph was
approached by the Savannah, and her Captain ordered on board. I make no
question about its being a taking by force; I make no question but
that, if it was done piratically, there was force enough to make it
piratical. But when asked, Why do you do it? Captain Baker replied, "I
take this by authority of the Confederated States. I am sorry for it;
but you make war upon us, and we have, in retaliation, to make war upon
you." The vessel is taken; nothing is removed from her; and she is sent
in as a prize, and reaches Georgetown. Nothing is then taken from her,
but she is proceeded against in Court, and men are examined there as to
the vessel, just as fairly, and probably just as good men, as have been
examined in the other room. The question is tried. It is an undeniable
case that, if this is a civil war, they having declared war, the vessel
belongs to a belligerent, and she is taken, condemned and sold,
according to the laws which have dominion over that country--a
proceeding (erroneous as it may be in the ultimate object of it)
according to all the course of every civilized country. And yet, we are
told, that is piratical! I submit that this cannot be so. We cannot,
with any approach to consistency, hold that we can treat them both as
enemies and rebels at the same time. Not so. Treat them as rebels, and
confiscate the property by due course of law, and you can get nothing;
because it is a singular thing that in this country there is no such
thing as forfeiture for treason. You cannot forfeit the chattels, but
only the land, and that for life; and as the penalty of treason is
death, leaving no life estate for the forfeiture to act on, there is,
practically, no forfeiture for treason. When these men come and say, we
have taken this property as an enemy, you treat them as rebels. It
seems to me this is indulging a private animosity; it is indulging a
fanatical principle, an unworthy principle, that cannot be carried out
without disregarding the great rules that belong to civilized nations
with regard to war.
Again, if your honors please, piracy and robbery always have secrecy
about them. The open robber, who meets you in noonday, yet secretes the
plunder. He does not go into a Court of Justice and say, "Behold what I
have taken! here are the jewels, and here the gold; adjudge if they are
lawful prize!" The robber never does that. Here there is nothing secret
or furtive. The vessel and cargo are taken before a Court and
adjudicated to be a prize. Let us take a case which, although unlikely
to happen, might occur. A man goes from seceding Virginia with an
execution to levy upon a man in loyal Virginia. The man there says,
"You are superseded; you have no authority;" and it is tried there. The
Court hold that the execution and levy from the seceded State does not
pass the property; but would it be possible to say, there was anything
furtive in the taking on the part of the officer? There is nothing more
plain, in criminal law, than that, if you act under color of authority,
although you may be ruined by suits in trespass, yet you are not to be
subjected to punishment as having done what was felonious.
But there is one other consideration which I would present on the
subject of piracy: it is robbery upon the high seas,--an act _hostis
humani generis_. It is made an offence in this country, because it is
an offence against the law of nations; for this is a question on which
civilized nations do not differ. All the nations of Europe look on at
this controversy. Here comes a man that the District Attorney of New
York says is _hostis humani generis_. What says the great commercial
nation of Great Britain? We do not treat you as pirates, but as
belligerents. We do not recognize your independence, because you have
not achieved it; but when the question arises, whether we shall
consider you as pirates, whom we, in common with all other nations,
have a right to take up, we say it is no such thing. Judge Sprague
says, that they say it is no such thing. So, too, with France. Here is
the authority of a great Empire that this is not a piratical but a
belligerent act. And again, Spain reiterates the same decision. Suppose
I could bring the authority of the highest Court in Great Britain that,
just in such a case as this, the Court acquitted a man of piracy; and
suppose I could add to that a similar judgment under the law of France;
and bring a case from the Courts in Spain, deciding the question in the
same way; and so, too, from Holland,--and when I come down to New York,
the District Attorney says the man is _hostis humani generis_! Is it
not absurd? If piracy be a crime against public law, it is so. The
recognition and the application of the doctrines of common humanity to
this great struggle,--that they should be regarded as the determining
point upon this great question--it seems to me your honors will never
hesitate in admitting. I, therefore, present this point, and if your
honors will permit me, after this discursive argumentation, I will read
it as I think it ought to be decided in law:
"There is evidence that at the time of the crew of the Savannah
shipping for the cruise, and at the time of the capture of the
Joseph, the authorities of the State of South Carolina had become
parties to a confederation of others of the United States of
America, named in the President's proclamation. That under such
confederation a Government, in fact, existed; and exercised, in
fact, the powers of civil and military Government over the
territories and people of those States, or the principal part
thereof. That the said Confederate States had, in fact, declared
war against the United States of America, and were openly
prosecuting the same, with large military forces, and the military
and civil organization of a Government; and had assumed, and were
in the exercise of, the power of issuing commissions to private
armed ships, to make captures of the property of the United States,
and the citizens thereof, as prize of war, and to send them into
port for adjudication as such. And that a civil war thus, in fact,
existed. That the taking of the Joseph was under such authority of
the Confederate States, and in the name of prize of war, and with
the purpose of having the same adjudged by a Prize Court in South
Carolina, or some other of the said Confederate States. And, if the
facts are so found, then the taking of the Joseph was not
piratical, under the eighth section of the Act of 1790, and the
prisoners must be acquitted from the charge under this count."
Now I approach the case of the commission. I suppose that the District
Attorney, by not proving the commission as a part of the charge, is not
entitled to convict any of these prisoners under the commission which
is shown. He does not prove his case; and it is no matter what we have
proved,--he is not entitled to a conviction under evidence which he
does not bring.
But now I take up the matter of the commission, and the consideration
of _piracy by statute_, under the 9th section. If your honors please,
it is right that I should give some history of that 9th section's
coming into the law of piracy. The 8th section you will find to be the
law of piracy, by the law of nations. All nations hold that to be
piracy which is there described. But, in the 11th and 12th of William
III., this state of things existed: King James had abdicated the Crown
of England twelve years before; William and Mary reigned together six
years; William survived her. Here, then, was a Government in England,
with a pretender, whom the English Government had declared was an alien
from the Throne; they had banished him. But he was at the Court of St.
Germain, in France; and there, through his instrumentality, privateers
were fitted out against English commerce. Then this Act was enacted
which I will now mention. You find it in _Hawkins' Pleas of the Crown_,
under the title _Piracy_, book I., chap. 37, sec. 7:
"It being also doubted by many eminent civilians whether, during
the Revolution, the persons who had captured English vessels, by
virtue of commissions granted by James II., at his Court at St.
Germain, after his abdication of the Throne of England, could be
deemed pirates, the grantor still having, as it was contended, the
right of war in him, it is enacted--11 & 12 Wm. III., c. 7, s.
8--'That if any of His Majesty's natural-born subjects, or denizens
of this Kingdom, shall commit any piracy or robbery, or any act of
hostility against others, His Majesty's subjects, upon the sea,
under color of any commission from any foreign Prince or State, or
pretence of authority from any person whatsoever, such offender or
offenders, and every of them, shall be deemed, adjudged, and taken
to be pirates, felons, and robbers; and they, and every of them,
being duly convicted thereof, according to this Act, or the
aforesaid statute of King Henry VIII., shall have and suffer such
pains of death, loss of lands, goods, and chattels, as pirates,
felons, and robbers upon the seas ought to have and suffer.'"
When an Act of Congress, declaring the crime of piracy, was enacted, in
1790, it is perfectly apparent that those who drew up the Act were
acquainted with _Hawkins' Pleas_, containing the 8th section, which is
the recognized law of piracy by all nations, and from that book, then,
took in this 9th section; because there was no exigency in our
Government to call for it, and no reason for its introduction, except
that it was found in a book familiar to those who were legislating for
this country. In regard to the Act, there are some peculiarities which
are very striking, and which bear strongly on this subject. The first
is the fact that a commission, although from a foreign State, taken by
a British subject or denizen of England, and committed against British
commerce, protected the party against the charge of piracy,--because
the thing was taken as prize, and for adjudication according to the
principles of the laws of nations, for which national action the nation
which took it was responsible. But, in the case and condition of James
II., the English declared that he was no longer of England,--they
declared him fallen from the Crown, and a foreigner. He had no
dominions, and no place where the poor man could hold a Prize Court;
and, if he could authorize a capture, there was no Court to adjudicate
upon it; there was no sovereign to be responsible for the action of the
Prize Court. He was a King without responsibility, and without the
power of having Courts of Adjudication; and it was a necessity arising
in the history of English law that that kind of action should be
treated as piratical. The English adopted that, therefore, as the
statute piracy. I refer your honors to Phillimore's International Law
(vol. III., page 398), where all the discussion and reasons are
contained; and they all are reasons applicable to a Prince without
dominions, without Courts, without a country; and to a foreign Prince,
in regard to English property and English subjects.
Now, then, let us see how these men stand. Under the 8th section, those
men who were not citizens of the United States, are, of course,
protected by a commission from a Government _de facto_. Their taking
was not _animo furandi_, because there was a commission. The very
enactment of the statute of William III. was upon the basis that it was
not piracy where there was a commission, even of this questionable
sort.
I say, then, in my third point, that if the facts are found as supposed
in the preceding point, and if it also appears that the commission from
the Confederated States, or the President thereof, had been issued for
the Savannah, and that the capture was made under color thereof, then,
as to the prisoners shown not to be citizens of the United States, the
taking of the Joseph was not piratical under the eighth section of the
Act of 1790,--_first_, because it was under color of authority; nor,
_second_, was it piratical under the ninth section, because that only
applies to citizens of the United States; and the prisoners, Del Carno,
&c., must be acquitted under the ninth as well as under the eighth
section.
But now we come to the American citizens who took that commission, and
we are to see with some accuracy how the case stands as to them,--which
involves two questions: One is, what kind of "other person" is embraced
in that law? And the other is, whether this indictment is supported as
under a commission from any _person_ whatever? Let me call your
attention to the form of the indictment in this last count of the
declaration. They all run in this way: that these persons, "being
citizens, did, _on pretence of authority from a person, to wit, one
Jefferson Davis_," &c. That is all that is said as to the pretence. Now
there is no lack of skill in this indictment. The pleader under this
indictment was surrounded with difficulties very grave indeed. He had
the commission. If he had described it as a commission from certain
foreign States, namely, South Carolina, Georgia, &c., the Government
would have recognized the existence of those States in the most formal
manner and by action of the most formal kind. If he said "Jefferson
Davis, President of certain Confederate States," that would be simply
that the pretence of authority was a pretence of authority from those
States, and the same consequence would result. Well, what could he do?
The only way in which he could make this stand at all was by saying
that it is an authority from Jefferson Davis, as an individual. That is
the meaning of this allegation.
Now, then, under the facts already stated, including now the commission
and the action under it, the taking of the Joseph was not piratical,
under the ninth section, because the commission was from the
Confederate States, and not from "a person, to wit, one Jefferson
Davis," as described in the indictment. Now that leads me to a
consideration of this commission. We had something a little like it
here yesterday, when the warrant issued by Mr. Buchanan Henry was given
in evidence for the arrest of these men. I suppose I would be charged
with ridicule in the last degree if I said they were arrested by the
authority of Buchanan Henry, or under pretence of authority from
Buchanan Henry; yet the warrant ran in the name of Buchanan Henry. Now
let us see whether this commission supports the allegation of its being
a commission from a private person. The allegation is, that the capture
was made under pretence of authority from one Jefferson Davis. The
commission runs just as the President's commission to your honors:
"JEFFERSON DAVIS,
"PRESIDENT OF THE CONFEDERATE STATES OF AMERICA.
_"To all who shall see these presents, greeting:_--Know ye, that by
virtue of the power vested in me by law, I have commissioned, and
do hereby commission, have authorized, and do hereby authorize, the
schooner or vessel called the Savannah (more particularly described
in the schedule hereunto annexed), whereof T. Harrison Baker is
commander, to act as a private armed vessel in the service of the
Confederate States, on the high seas, against the United States of
America, their ships, vessels, goods, and effects, and those of her
citizens, during the pendency of the war now existing between the
said Confederate States and the said United States.
"This commission to continue in force until revoked by the
President of the Confederate States for the time being.
"Schedule of description of the vessel:--Name, Schooner Savannah;
tonnage, 53-41/95 tons; armament, one large pivot gun and small
arms; number of crew, thirty.
"Given under my hand and the seal of the Confederate States, at
Montgomery, this 18th day of May, A.D. 1861.
"JEFFERSON DAVIS.
"By the President--R. TOOMBS, Secretary of State."
Now I submit that, if they had framed an indictment for taking a
commission under the King of England, and it had been under the
Government of England as a foreign State, without naming the
individual, such a commission as this would sustain it. If they had
indicted as taking a commission out under any foreign State or nation,
a commission in this way would have sustained that indictment; because
the officer is merely the authenticator of the instrument; the
authority is not his,--it is not under his authority; he is the mere
ministerial officer, in fact, of the Government.
Now I submit, that this taking cannot be held piratical, under the
ninth section, on this indictment; because it was a taking, not on
pretence of authority from Jefferson Davis, but under authority of the
Confederate States, exercised by Jefferson Davis. And, in a case of
this kind, I must say that I consider it will prove the greatest
Godsend to the Government, and to the prisoners on both sides who now
anxiously await the result, if, without touching the other questions,
this indictment shall fall to the ground on a mere technical point.
That is one reason. Another reason is this: The Act is for taking
vessels under a commission from any foreign Prince or State, or on
pretence of authority from any person. Now what is a foreign Prince or
a foreign State? If your honors please, at the time this Act was
enacted, within some three years of the United States coming together,
is it conceivable that the thought entered into the heart of any man
who had anything to do with it that it was to take effect against any
man acting under the authority of any of the States of this Union? The
States all were authorized, under certain circumstances, to have
ships-of-war and to have armies. There was no telling what collision
there might be; and the idea that this Act, almost a literal transcript
from the English statute of 11 and 12 William III., contemplated that
punishment for acting under the authority of domestic persons, is
inconceivable.
In construing an Act so highly penal as this we must be very sure that
we are not only within the letter, but within the very spirit and
contemplation, of the Act; and can you think that the framers of this
Government gravely provided for the offence of taking a commission
under some of the persons acting as Governor, or in connection with the
domestic institutions of this country? I submit that the Act was
intended to operate against foreign States and nations, and a foreign
person; and it is inconceivable that the Act should have been
contemplated to embrace any such thing as is now brought up. I submit,
therefore, as the third of my specifications under this point, that
Jefferson Davis was not a foreign person, nor assuming the authority of
a foreign Prince or Ruler. The statute was one against commissions
under foreign authority of some kind or other, either Prince, or State,
or person.
But I now draw your attention to another feature of the statute, which
seems to me equally decisive. This statute is transmitted to us from
England, and that which was the design and exigency of its adoption
there is to bear with great, if not decisive, force, upon its
construction here. We took it because they had it, and we took it,
therefore, for reasons similar to theirs. Now what was the real
difficulty there? It was this: that a Prince without dominion, a Prince
having no Government _de facto_, a mere nominal Prince, undertook to
issue commissions throughout the world against British commerce. Evils
that are very manifest and plain, in regard to the law of prizes, apply
to that case. The prizes could not be adjudicated in his Courts; he had
none. This was an enactment against Princes who had abdicated and were
without dominion. Such things were common, as well in the time of
William III. as since. Abdicated Princes very soon turn to be robbers,
whose only object is to get re-established, and they are not scrupulous
as to means. They stand as mere fictions, undertaking to exercise
authority, with none of the responsibilities which belong to Rulers.
How different it is with this Jefferson Davis! I speak now in no degree
of his merits, or as lessening that feeling which my fellow-citizens
and I share alike upon the subject of this rebellion. But here is a
man, not a nominal Prince or Ruler, but he is (if you please without
right) Ruler of ten millions of people. Is this Act, which is intended
to meet the case of a man without people, or dominion, or
force--without any thing but the name and claim of Ruler--to be applied
to a man who represents (rightfully or wrongfully) a large fraction of
a great nation? To say that every man who takes a commission (applying
as well to civil as to military commissions), that any man who takes a
commission, from him, is either a robber or a pirate--if on land, a
robber, if on sea, a pirate--is unjust and unreasonable--contrary to
every principle that governs the laws of nations. Patriotic
vituperation may go far--patriotic spirit and feeling may go far--but
there is a limit to every thing that is real. The human mind, as it
seems to me, and the human heart, cannot go to the extent of the
doctrine that they can be treated as robbers who act under a Government
extending _de facto_ so far and doing _de facto_ so many things
throughout upon the principles of civilized warfare, and having a vast
territory, and vast numbers of people acting as it dictates. It is
perverting the law of piracy to apply it to a case so entirely
different.
Now it comes back to the fact that this "pretence of authority" was the
authority of all those States. Those States, when they come back to the
Union, if they ever do, will come back with all their powers as
original States. The Confederation you may call illegal and improper,
but it is a Confederation _de facto_; its right may be questioned, but
it is a _de facto_ Government, with this gentleman presiding over it,
and performing the duties which, as the Ruler of a great nation,
devolve upon him--bringing out armies by hundreds of thousands,
bringing out treasures by the million,--and yet you are to say it has
no color of authority. It is idle, it seems to me, to say that a man
situated as Jefferson Davis is was intended by a law against a mere
nominal Prince. I submit that because Jefferson Davis was actually the
Chief of a Confederation of States, not foreign, exercising actual
power and government over large territories, with a large population,
under an organized Government, having Courts within its territories for
the adjudication of captures,--that upon each of these grounds
Harleston, as well as the others who are citizens, should be acquitted
under the 9th section.
That is all the argument which I address particularly; and I beg leave
to read two or three general propositions on the construction of the
law in this matter:
I.--The recognition, by the great commercial nations of the world, of
the Confederate States as belligerents, and not pirates and robbers,
prevents the captures under authority from being held piratical under
the law of nations.
II.--1. The ninth section of the Act of 1790 has not in view any
application to the States then recently united as the United States of
America, or to the persons having authority _de facto_ in them.
2. That section had in view foreign Princes and States, and foreign
authority only.
3. The authority from any person in that section has reference to
persons without the possession, in fact, of territory.
If your honors please, I have endeavored, so far as it was possible, to
abbreviate what I have had to say on this subject. It is a very
interesting one, undoubtedly, not only to the legal student, but to all
persons in the country. This war is a war to reclaim those States. To
attempt to reclaim them by prosecutions for piracy, or by acts of
hostility which disregard them as having any form of society,--it seems
to me that no national evil could be greater. The idea that in a
commercial city it is very offensive that there should be privateers,
is a trifle. The navy can regulate that. Let them look more to the
privateers that want to get out than to the prizes that want to come
in, and that will be provided for. We need not violate principles of
law, or of humanity, or the common sense of the world, to produce an
effect of that kind. We need to show that, in the midst of all this
excitement and outcry against piracy--in the midst of a press that
never names any of these people without calling them "pirates"--the men
brought in always in chains, for the purpose of exciting public
indignation against them and preventing their being treated as men of
common rights and common interests with us--all which is very
humiliating, it seems to me--in a Court of Justice no such feelings
will be succumbed to.
Certain I am that, where I stand, no such principles will be put in
use. Justice will come--severe and stern, it may be--but it will be
justice, with truth, and reason, and humanity, and political tenderness
accompanying all its acts and all its judgments.
_Mr. Larocque_: If the Court please, I had hoped to be saved the
necessity of addressing your honors upon these propositions of law;
but, in the distribution that has been made among the counsel, it has
fallen to my lot to present the propositions in reference to which my
opening was made, yesterday, to the Jury, and which will be adverted to
by the counsel who, on our side, will close the case; and, simply,
without detaining your honors, at this late hour, with any remarks upon
them further than the reading of some extracts from authorities I have
collected, I will present the propositions, leaving them to the action
of your honors, and to the remarks of my associate, who will close this
case, after we have ascertained the direction it will take before the
Jury.
The first proposition I had stated, with reference to jurisdiction:
"That the defendants, after their capture and confinement as criminals,
for the acts charged in this indictment, having been taken within the
District of Virginia, on board the vessel on which they were so
confined before being brought within the Southern District of New York,
cannot be convicted under this indictment."
In reference to that, there are a number of additional authorities that
I will furnish to your honors. In the case of the _United States_ vs.
_Charles A. Greiner_, tried before Judge Cadwalader, in the
Philadelphia District, the defendant had been arrested under a charge
of treason committed in Georgia. It seems to have been understood, by
the learned counsel on the other side, that the question of
jurisdiction may be influenced by the fact of whether there was any
possibility of these prisoners being tried in Virginia or not; and it
is in reference to that point that I cite this case. Judge Cadwalader
says:
"The questions in this case are more important than difficult. On
the 2d of January last an artillery company of the State of
Georgia, mustered in military array, took Fort Pulaski, in that
State, from the possession of the United States, without
encountering any forcible resistance. They garrisoned the post for
some time, and left it in the possession of the government of the
State. The accused, a native of Philadelphia, where he has many
connections, resides in Georgia. He was a member of this artillery
company when it occupied the fort, and, for aught that appears, may
still be one of its members. He was not its commander. Whether he
had any rank in it, or was only a private soldier, does not appear,
and is, I think, unimportant. He is charged with treason in levying
war against the United States. The overt act alleged is, that he
participated, as one of this military company, in the capture of
the fort, and in its detention until it was handed over to the
permanent occupation of the authorities of the State.
"The primary question is whether, if his guilt has been
sufficiently proved, I can commit him for trial, detain him in
custody, or hold him to bail to answer the charge. The objection to
my doing so is, that the offence was committed in the State of
Georgia, where a Court of the United States cannot, at present, be
held, and where, as the District Attorney admits, a _speedy_ trial
cannot be had. The truth of this admission is of public notoriety.
"The Constitution of the United States provides that in all
criminal prosecutions the accused shall enjoy the right to a
_speedy_ trial by a Jury of the _State and District_ wherein the
crime shall have been committed. The only statute which, if the
Courts of the United States for the State of Georgia were open,
would authorize me to do more than hold this party to security of
the peace, and for good behavior, is the 33d section of the
Judiciary Act of the 24th September, 1789. That section, after
authorizing commitments, &c., for trial, before any Court of the
United States having cognizance of the offence, provides that if
the commitment is in a District other than that in which the
offence is to be tried, it shall be the duty of the Judge of the
District where the delinquent is imprisoned _seasonably_ to issue,
and of the Marshal of the same District to execute, a warrant for
the removal of the offender to the District in which the trial is
to be had. The District Attorney of the United States does not ask
me to issue such a warrant for this party's removal to Georgia for
trial. Therefore I can do nothing under this Act of Congress. It
does not authorize me to detain him in custody to abide the
ultimate result of possible future hostilities in Georgia, or to
hold him to bail for trial in a Court there, of which the sessions
have been interrupted, and are indefinitely postponed."
In reference to the counts of the indictment founded upon the 8th
section of the Act of 1790 and the Act of 1820, the propositions I have
are these:
"_Second_, That to convict the defendants, under either of the first
five counts of the indictment, the Jury must have such evidence as
would warrant a conviction for robbery if the acts proved had been
performed on land.
"_Third_, That the defendants cannot be convicted of robbery, in the
capture of the Joseph, unless she was taken with a piratical and
felonious intent.
"_Fourth_, That if the defendants, at the time of her capture, were
acting under the commission in evidence, and, in good faith, believed
that such commission authorized her capture, they did not act with a
piratical or felonious intent, and cannot be convicted under either of
the first five counts in the indictment."
There are one or two authorities I did not state yesterday, which I beg
now to furnish, as some additional authorities have been handed up on
the other side:
The Josefa Segunda, 5 Wheaton, 357. In this case Judge Livingston says:
"Was the General Arismendi a piratical cruiser? The Court thinks
not. Among the exhibits is a copy of a commission, which is all
that in such a case can be expected, which appears to have been
issued under the authority of the Government of Venezuela. This
Republic is composed of the inhabitants of a portion of the
dominions of Spain, in South America, which have been for some
time, and still are, maintaining a contest for independence with
the mother country. Although not acknowledged by our Government as
an independent nation, it is well known that open war exists
between them and His Catholic Majesty, in which the United States
maintain strict neutrality. In this state of things, this Court
cannot but respect the belligerent rights of both parties, and does
not treat as pirates the cruisers of either so long as they act
under and within the scope of their respective commissions."
In the _United States_ vs. _The Brig Malek Adhel_ (2 Howard's U.S. Rep.
211), as to the Act of 1819, Judge Story (page 232) says:
"Where the Act uses the word piratical, it does so in a general
sense,--importing that the aggression is unauthorized by the law of
nations, hostile in its character, wanton and cruel in its
commission, and _utterly without any sanction from any public
authority or sovereign power. In short, it means that the act
belongs to the class of offences which pirates are in the habit of
perpetrating, whether they do it for purposes of plunder, or
purposes of hatred, revenge, or wanton abuse of power. A pirate is
deemed--and properly deemed_--HOSTIS HUMANI GENERIS. But why is he
so deemed? _Because he commits hostilities upon the subjects and
property of any or all nations, without any regard to right or
duty, or any pretence of public authority._ If he willfully sinks
or destroys an innocent merchant ship, without any other object
than to gratify his lawless appetite for mischief, it is just as
much piratical aggression, in the sense of the law of nations, and
of the Act of Congress, as if he did it solely and exclusively for
the sake of plunder, _lucri causa_. The law looks to it as an act
of hostility; and, being committed by a vessel not commissioned and
engaged in lawful warfare, it treats it as the act of a pirate, and
one who is emphatically _hostis humani generis_."
Then upon the question that this commission is only by color of
authority from an unrecognized power, and that the authority to grant
such a commission is disputed, I refer to the case of _Davison_ vs.
_Certain Seal Skins_ (2 Paine's C.C.R. 332), which was a case of
salvage of property after a piracy alleged to have been committed by
Louis Vernet, at Port St. Louis, in the Eastern Falkland Islands, by
taking them from a vessel,--he wrongfully and unlawfully claiming and
pretending to be Governor of the Islands, under Buenos Ayres. The Court
says:
"Robbery on the high seas is understood to be piracy by our law.
The taking must be _felonious_. A commissioned cruiser, by
exceeding his authority, is not thereby to be considered a pirate.
It may be a marine trespass, but not an act of piracy, _if the
vessel is taken as a prize_, unless taken feloniously, and with
intent to commit a robbery: the _quo animo_ may be inquired into.
_A pirate is one who acts solely on his own authority, without any
commission or authority from a sovereign State_, seizing by force
and appropriating to himself, without discrimination, every vessel
he meets with; and hence pirates have always been compared to
robbers. The only difference between them is that the sea is the
theatre of action for the one, and the land for the other."
By referring to this case, pp. 334, 335, your honors will find that
Buenos Ayres had no lawful jurisdiction over the islands, and that our
Executive Government had so decided; but Buenos Ayres avowed the acts
of those claiming to act under her authority, and our Government
discharged the prisoners who had been captured as pirates, disclaiming,
under those circumstances, to hold them personally criminally
responsible.
The next proposition which I state is this: "That, by the public law of
the world, the law of nations, and the laws of war, the commission in
evidence, supported by the proof in the case as to the color of
authority under which it was issued, would afford adequate protection
to the defendants against a conviction for piracy; and being an
authority emanating neither from a foreign Prince nor foreign State,
nor from a person merely, the offence charged in the last five counts
of the indictment, is not within the purview of the 9th section of the
Act of 1790, and the defendants cannot be convicted under either of
those counts, if they acted in good faith under that commission."
I refer your honors to the case of the _Santissima Trinidad_, 7
Wheaton, 283, to the opinion of Judge Story, in which he says:
"There is another objection urged against the admission of this
vessel to the privileges and immunities of a public ship, which may
as well be disposed of in connection with the question already
considered. It is, that Buenos Ayres has not yet been acknowledged
as a sovereign independent Government, by the Executive or
Legislature of the United States, and therefore is not entitled to
have her ships-of-war recognized by our Courts as national ships.
We have, in former cases, had occasion to express our opinion on
this point. The Government of the United States has recognized the
existence of a civil war between Spain and her Colonies, and has
avowed a determination to remain neutral between the parties, and
to allow to each the same rights of asylum, and hospitality, and
intercourse. Each party is, therefore, deemed by us a belligerent
nation, having, so far as concerns us, the sovereign rights of war,
and entitled to be respected in the exercise of those rights. We
cannot interfere to the prejudice of either belligerent, without
making ourselves a party to the contest and departing from the
posture of neutrality. All captures made by each must be considered
as having the same validity; and all the immunities which may be
claimed by public ships in our ports, under the laws of nations,
must be considered as equally the right of each, and as such must
be recognized by our Courts of Justice, until Congress shall
prescribe a different rule. This is the doctrine heretofore
asserted by this Court, and we see no reason to depart from it."
Your honors, by referring to the case of The Bello Corunnes, 6 Wheaton,
152, will see the doctrine laid down distinctly, that acts may be
piratical for all civil purposes which would not authorize the
conviction of the perpetrators criminally as pirates; _e.g._, a citizen
of the United States, taking from a State at war with Spain a
commission to cruise against that power, contrary to the 14th art. of
the Spanish Treaty;--and the Court held, in that case, that that would
involve the consequences of a piracy, for the purpose of condemnation
of property; but it would not be criminal piracy, under either the law
of nations or of the United States.
On the general subject of privateers I had a reference to Vattel, but I
do not think it necessary to read it, because the authorities on that
subject cover it so fully.
I come now, if your honors please, to what my learned friend, when he
addressed the Court on the part of the Government, has been pleased to
call the political part of this case; and I have distinctly stated in
my propositions what I contended for on that subject. In the first
place, 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 shall, without stopping for any discussion, simply state the
subordinate propositions by which I think that is established, and give
a reference to the authorities. I say, in the first place, as I said to
the Jury, that citizens of the United States owe a divided allegiance,
partly to the United States and partly to their respective States. They
can commit treason against either; for the State constitutions and laws
define and punish treason against the States, as the Constitution of
the United States does treason against them.
The Federal and State Governments are each supreme and sovereign within
the limits of their respective jurisdictions under the Federal and
State Constitutions; each operates directly upon the citizen, and each
also operates as a check and restriction upon the other, and upon the
encroachments of the other, in seeking to extend beyond legitimate
limits its jurisdiction over the citizen, or over the public domain
common to both. Now, if your honors please, in regard to that, I will
very briefly refer you to what I rely upon. I refer, in the first
place, to sections 2 and 3, of Article 6th, of the Constitution of the
United States.
"_Sec. 2._ This Constitution, and the laws of the United States,
_which shall be made in pursuance thereof_, and all treaties made,
or which shall be made, under the authority of the United States,
shall be the supreme law of the land; and the Judges in every State
shall be bound thereby, anything in the constitution or laws of any
State to the contrary notwithstanding.
"_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."