_Mr. Larocque_ resumed:
I will proceed very briefly, if your honors please, to close what I was
submitting to the Court upon the propositions which, as I maintain,
tend to show a colorable authority in the State government, in possible
cases that might arise, to authorize the issuing of letters of marque.
I will state them in their connection, in order that your honors may
see what they are. The first is the one I considered yesterday, viz.,
that the Federal Executive Government and the executive governments of
the States, under the Constitution of the United States, each possess
the jurisdiction to decide whether their respective acts are within or
exceed the limits of their respective constitutional powers in cases of
collision between them in their administrative acts operating upon the
public domain, or upon the State, or its citizens as a body politic.
I had concluded what I intended to submit upon that, and proceed to the
others, which are--
2. That in such cases, the Constitution having erected no common
arbiter between them, the right of forcible resistance to the exercise
of unlawful power, which, by the law of nature, resides in the people,
has been delegated by them, by the Federal and State Constitutions
respectively, to the Federal and State Governments respectively, and
each having the jurisdiction to judge whether its acts are within the
constitutional limit of its own powers, has also necessarily the right
to employ force in their assertion or defence, if needed.
3. That in such cases the citizen of a State which, in its political
capacity, has come into forcible collision with the Federal Government,
owing allegiance to both within the limits of their respective
constitutional powers, and each possessing the jurisdiction to
determine for him the compound question of law and fact, whether the
constitutional limit of those powers has been exceeded by itself or the
other in the particular case, is protected from all criminal liability
for any act done by him, in good faith, in adhering to and under the
authority of either Government.
I wish very briefly to refer your honors to a few authorities, which, I
hold, sustain these propositions. I say, in the first place, that this
right bears no analogy whatever to the right, once claimed and most
successfully refuted, of the inhabitants of a State, in Convention, to
decide by ordinance upon the unconstitutionally of a law of the Union,
and to prevent by force its operation within the limits of the State,
in a case legitimately falling within the cognizance of the Courts. The
claim to collect duties under an Act of Congress alleged to be
unconstitutional was strictly an instance of this latter class. The
citizen from whom the duties were claimed could simply refuse to pay,
and thereby refer the question of constitutionality of the law to the
judicial tribunals to which it properly belonged, and which must
necessarily pass upon the question before the duties could be
collected. On the other hand, the claim to hold or retake forts or
other public places within the limits of a State, as property of the
United States, is one against which, if unauthorized, the State could
not by possibility defend itself through the agency of the Courts.
Now, if your honors please, I have stated most distinctly, and admitted
most fully, that, in whatever cases the judicial power of the United
States extends to, it is supreme. That is to say, if a collision takes
place in a suit in a State Court between the Federal and State laws,
and the decision of the State Court is against the right, privilege, or
exemption, as it is called in the judiciary Act, claimed under the
authority of the Union, the Supreme Court of the United States can
redress the error. But I am now speaking of that class of cases where
the judiciary have nothing whatever to do, and in which, I contend, the
Federal and State authorities are each supreme and sovereign, within
the limits of their respective power, and neither has any right or
authority beyond the lines which bound their respective jurisdiction.
And, if your honors please, I refer to the Inaugural Address of Mr.
Lincoln, not only for the proposition that the judicial authority has
nothing to do whatever in a case such as that I am now supposing, but
that, even in cases where the judiciary is competent to act, its
decisions do not form precedents, do not form rules for the government
of the co-ordinate departments of the Union, in future cases of State
policy, and that the executive and the legislative departments are
still left at liberty to act as if no decision had been made. I do not
mean to be understood as acquiescing in that claim; I consider it as a
doctrine infinitely more dangerous and destructive than the doctrine of
constitutional secession; but it comes to us as the claim set up on the
part of the President; and if that is at all correct, there is an end
of all pretence that the judiciary is competent to afford any relief or
protection in the other class of cases referred to.
He says:
"I do not forget the position assumed by some, that constitutional
questions are to be decided by the Supreme Court; nor do I deny
that such decision must be binding in any case upon the parties to
a suit, while they are also entitled to very high respect and
consideration in all parallel cases by all other departments of the
Government; and while it is obviously possible that such decision
may be erroneous in any given case, still the evil effect following
it being limited to that particular case, with the chances that it
may be overruled, and never become a precedent for other cases, can
better be borne than could the evils of a different practice. At
the same time the candid citizen must confess that, if the policy
of the Government upon the vital questions affecting the whole
people is to be irrevocably fixed by the decisions of the Supreme
Court, the instant they are made in ordinary litigations between
parties in personal actions, the people will have ceased to be
their own masters, having to that extent practically resigned the
Government into the hands of that eminent tribunal. Nor is there,
in this view, any assault upon the Court or the Judges. It is a
duty from which they may not shrink, to decide cases properly
brought before them, and it is no fault of theirs if others seek to
turn their decisions to political purposes."
I have not the document at this moment; but your honors will probably
bear in mind that the Executive also lately consulted the law-officer
of the Government upon the question of suspending the privilege of
_habeas corpus_, and I well remember the clause in the opinion which
was delivered by that eminent legal gentleman and high officer of the
Government on that occasion, and which was afterwards communicated by
the President to Congress as the basis of his action. In that opinion
the present learned Attorney-General used this language: "To say that
the departments of our Government are co-ordinate, is to say that the
judgment of one of them is not binding upon the other two, as to the
arguments and principles involved in the judgment. It binds only the
parties to the case decided." And your honors will recollect that,
acting upon that enunciation of the law of the land and of the
construction of the Constitution, although he admitted that the Supreme
Court of the United States had decided that the privilege of _habeas
corpus_ could not be suspended by the Executive, without the
interposition of Congress, the legal adviser of the Government held, at
the same time, that that decision of the Supreme Court was not binding
upon the Executive.
Now, for the purpose of showing what I mean by the right of resistance
reserved to the people by the law of nature, which, as I say, is
delegated by them to these two sovereigns, for the purpose that each
may maintain its own authority and prevent encroachment by the other, I
beg to refer your honors to _Rutherforth's Institutes of Natural Law,
vol. 1, page 391_, commencing with section 10. And as a proof than I
broach no novel or revolutionary doctrine, your honors will bear in
mind that these Institutes of Natural Law were a course of lectures
delivered in one of the great seminaries of learning of England, and
their doctrines thought fit and proper to be instilled into the minds
of the youth of that Kingdom, the loyalty of whose people to their
Government has become proverbial among all the nations of the world.
The author says:
"It is a question of some importance, and has been thought a
question not easily to be determined, whether the members of a
civil society have, upon any event, or in any circumstances
whatsoever, a right to resist their governors, or rather the
persons who are invested with the civil power of that society."
Then he states several cases in which the civil governors, as he calls
them, lose their power over their subjects, and continues:
"Fourthly, Though the governors of a society should be invested by
the constitution with all civil power in the highest degree and to
the greatest extent that the nature of a civil power will admit of,
yet this does not imply that the people are in a state of perfect
subjection. Civil power is, in its own nature, a limited power; as
it arose at first from social union, so it is limited by the ends
and purposes of such union, whether it is exercised, as it is in
democracies, by the body of the people, or, as it is in monarchies,
by one single person. But if the power of a Monarch, when he is
considered as a civil governor, is thus limited by the ends of
social union, whatever obedience and submission the people may owe
him whilst he keeps within these limits, he has no power at all,
and consequently the people owe him no subjection, when he goes
beyond them.
"Having thus taken a short view of the several ways in which the
authority of the governors of a society fails, and the subjection
of the people ceases, we may now return to the question which was
before us.
"If you ask whether the members of a civil society have a right to
resist the civil governors of it by force? your question is too
general to admit of a determinate answer.
"As far as the just authority of the civil governors and the
subjection of the people extend, resistance by force is rebellion.
"Subjection consists in an obligation to obey; as far, therefore,
as the people are in subjection, they can have no right to resist;
because an obligation to obey, and a right to resist, are
inconsistent with one another.
"But the power of civil governors is neither necessarily connected
with their persons, nor infinite whilst it is in their possession.
"It ceases by abdication; it is overruled by the laws of nature and
of God; and it does not extend beyond the limits which either the
civil constitution or the ends of social union have set to it.
"Where their power thus fails in right, and they have no just
authority, the subjection of the people ceases; that is, as far as
of right they have no power, or no just authority, the people are
not obliged to obey them; so that any force which they make use of,
either to compel obedience or to punish disobedience, is unjust
force; the people may perhaps be at liberty to submit to it, if
they please; but, because it is unjust force, the law of nature
does not oblige them to submit to it.
"But this law, if it does not oblige the people to submit to such
force, allows them to have recourse to the necessary means of
relieving themselves from it, and of securing themselves against
it, to the means of resistance by opposing force to force, if they
cannot be relieved from it and secured against it by any other
means."