"Sec. XV. In the general questions concerning the right of
resistance, it is usually objected that there is no common judge
who is vested with authority to determine, between the supreme
governors and the people, where the right of resistance begins;
and the want of such a judge is supposed to leave the people room
to abuse this right; they may possibly pretend that they are
unjustly oppressed, and, upon this pretence, may causelessly and
rebelliously take up arms against their governors, although they
are laid under no other restraints, and no other compulsion is
made use of, but what the general nature of civil society or the
particular circumstances of their own society require.
"But, be this as it may, the possibility that the right may be
abused, does not prove that no such right subsists.
"If we would conclude, on the one hand, that the people have no
right of resistance, because this right is capable of being abused,
we might, for the same reason, conclude, on the other hand, that
supreme governors have no authority.
"Whatever authority these governors have in any civil society, it
was given them for the common benefit of the society; and it is
possible that, under the color of this authority, they may oppress
the people in order to promote their own separate benefit.
"Sec. XVI. It is a groundless suggestion, that a right of
resistance in the people will occasion treason and rebellion, and
that it will weaken the authority of civil government, and will
render the office of those who are invested with it precarious and
unsafe, even though they administer it with the utmost prudence and
with all due regard to the common benefit.
"The right of resistance will indeed render the general notion of
rebellion less extensive in its application to particular facts.
"All use of force against such persons as are invested with supreme
power, would come under the notion of rebellion, if the people have
no right of this sort; whereas, if they have such a right, the use
of force to repel tyranical and unsocial oppression, when it cannot
be removed by any other means, must have some other name given to
it. So that, however true it may be that, in consequence of this
right of resistance, supreme government will be liable, of right,
to some external checks, arising out of the law of nature, to which
they would otherwise not be liable, yet it cannot properly be said
to expose them to rebellion."
I beg, in the next place, to read to your honors, from the opinion of
Mr. Justice Johnson, a short paragraph. It is to be found in 1st
Wheaton, 363, in the case of _Martin_ vs. _Hunter's Lessee_. I believe
a paragraph from that has been already read, on the other side, and I
wish to give you, in connection with it, what he says, speaking of the
power of the judiciary, and the consequences that would result in any
case to which that power did not reach. He says:
"On the other hand, so firmly am I persuaded that the American
people no longer can enjoy the blessings of a free Government,
whenever the State sovereignties shall be prostrated at the feet of
the General Government, nor the proud consciousness of equality and
security, any longer than the independence of judicial power shall
be maintained consecrated and intangible, that I could borrow the
language of a celebrated orator, and exclaim, 'I rejoice that
Virginia has resisted.'"
I also wish to read a sentence from the case of _Moore_ vs. _The
State of Illinois_, in 14 Howard, p. 20--the opinion by Mr. Justice
Grier. He says:
"Every citizen of the United States is also a citizen of a State or
Territory. He may be said to owe allegiance to two sovereigns, and
may be liable to punishment for an infraction of the laws of
either."
And Mr. Justice McLean, in speaking of the same subject, in the same
case, at page 22, says:
"It is true the criminal laws of the Federal and State Governments
emanated from different sovereignties; but they operate on the same
people, and should have the same end in view. In this respect the
Federal Government, though sovereign within the limitation of its
powers, may, in some sense, be considered as the agent of the
States, to provide for the general welfare by punishing offences
under its own laws within its jurisdiction."
I wish also to refer to the case of the _United States_ vs. _Booth_,
in 21 Howard--the opinion of CHIEF JUSTICE TANEY--in connection with
the question of what the result is where the judiciary has not power
to act. He says:
"The importance which the framers of the Constitution attached to
such a tribunal, for the purpose of preserving internal
tranquillity, is strikingly manifested by the clause which gives
this Court jurisdiction _over the sovereign States which compose
this Union_, when a controversy arises _between them_. Instead of
reserving the right to seek redress for injustice from another
State by their sovereign powers, they have bound themselves to
submit to the decision of this Court, and to abide by its judgment.
And it is not out of place to say, here, that experience has
demonstrated that this power was not unwisely surrendered by the
States; for, in the time that has already elapsed since this
Government came into existence, several irritating and angry
controversies have taken place between adjoining States, in
relation to their respective boundaries, and which have sometimes
threatened to end in force and violence, but for the power vested
in this Court to hear them and decide between them.
"The same purposes are clearly indicated by the different language
employed when conferring supremacy upon the laws of the United
States and jurisdiction upon its Courts. In the first case, it
provides that 'this Constitution, and the laws of the United
States, _which shall be made in pursuance thereof_, shall be the
supreme law of the land, and obligatory upon the Judges in every
State.' The words in italics show the precision and foresight which
marks every clause in the instrument. The sovereignty to be created
was to be limited in its powers of legislation; and, if it passed a
law not authorized by its enumerated powers, it was not to be
regarded as the supreme law of the land, nor were the State Judges
bound to carry it into execution."
And further on, speaking of the claimed right of the State of Wisconsin
to discharge a prisoner convicted in the United States Court upon a
criminal conviction, and to refuse afterwards to obey a writ of error
issued out of the Supreme Court of the United States to review that
judgment, he uses language of this kind:
"This right to inquire by process of habeas corpus, and the duty of
the officer to make a return, grows necessarily out of the complex
character of our Government, and the existence of two distinct and
separate sovereignties within the same territorial space, each of
them restricted in its powers, and each, within its sphere of
action prescribed by the Constitution of the United States,
independent of the other."
Now, if your honors please, upon that question still further--that
where there is no possibility of the power of the judiciary being
exercised, there being, as the learned Chief Justice expresses it in
his own language, "two distinct and separate sovereignties within the
same territorial space" exercising jurisdiction, the right of forcible
resistance exists in the State governments. I beg to refer to the
Federalist, No. 28, by Alexander Hamilton, p. 126. He says:
"It may safely be received as an axiom in our political system,
that the State governments will in all possible contingencies
afford complete security against invasions of the public liberty by
the federal authority. Projects of usurpation cannot be masked
under pretences so likely to escape the penetration of select
bodies of men as of the people at large. The Legislatures will have
better means of information; they can discover the danger at a
distance, and, possessing all the organs of civil power and the
confidence of the people, they can at once adopt a regular plan of
opposition; they can combine all the resources of the community.
They can readily communicate with each other in the different
States, and unite their common forces for the protection of their
common liberty."
I refer also to the _Federalist_, No. 46, by James Madison, where
he uses this language:
"Were it admitted, however, that the Federal Government may feel an
equal disposition with the State governments to extend its power
beyond the due limits, the latter would still have the advantage in
the means of defeating such encroachments. If the act of a particular
State, though unfriendly to the National Government, be generally
popular in that State, and should not too grossly violate the oaths
of the State officers, it is executed immediately, and of course by
means on the spot, and depending on the State alone. * * * On the
other hand, should an unwarrantable measure of the Federal
Government be unpopular in particular States, which would seldom
fail to be the case, or even a warrantable measure be so, which
may sometimes be the case, the means of opposition to it are at
hand. * * *
"But ambitious encroachments of the Federal Government on the
authority of the State governments would not excite the opposition
of a single State, or of a few States only. They would be signals
of general alarm. Every government would espouse the common cause;
a correspondence would be opened; plans of resistance would be
concerted; one spirit would animate and conduct the whole. The same
combination, in short, would result from an apprehension of the
_federal_ as was produced by the dread of a _foreign_ yoke; and,
unless the projected innovations should be voluntarily renounced,
the same appeal to a trial of force would be made in the one case
as was made in the other. But what degree of madness would ever
drive the Federal Government to such an extremity? * * * But what
would be the contest in the case we are supposing? Who would be the
parties? A few Representatives of the people would be opposed to
the people themselves; or, rather, one set of Representatives would
be contending against thirteen sets of Representatives, with the
whole body of their common constituents on the side of the latter.
The only refuge left for those who prophesy the downfall of the
State governments is the visionary supposition that the Federal
Government may previously accumulate a military force for the
projects of ambition. * * * Extravagant as the supposition is, let
it, however, be made. Let a regular army, fully equal to the
resources of the country, be formed, and let it be entirely at the
devotion of the Federal Government; still it would not be going too
far to say that the State governments, with the people on their
side, would be able to repel the danger. The highest number to
which, according to the best computation, a standing army can be
carried in any country, does not exceed 1/100th of the whole number
of souls, or 1/25th part of the number able to bear arms. This
proportion would not yield to the United States an army of more
than 25 or 30,000 men. To these would be opposed a militia
amounting to near 500,000 citizens, with arms in their hands,
officered by men chosen from among themselves, fighting for their
common liberties, and united and conducted by governments
possessing their affections and confidence."
I shall not spend the time of your honors by reading the Virginia and
Kentucky resolutions--the one the production of James Madison, and the
other of Thomas Jefferson--with which you are so familiar. They fully
bear out the doctrine for which I contend, and much more than I
contend for. I wish, however, to read, from the American State Papers,
vol. 21, p. 6, a series of resolutions adopted by the Legislature of
Pennsylvania, on the 3d April, 1809. They are as follows:
"_Resolved_, by the Senate and House of Representatives of the
Commonwealth of Pennsylvania:
"That, as a member of the Federal Union, the Legislature of
Pennsylvania acknowledges the supremacy, and will cheerfully submit
to the authority, of the General Government, as far as that
authority is delegated by the Constitution of the United States.
But while they yield to this authority, when exerted within
constitutional limits, they trust they will not be considered as
acting hostile to the General Government _when, as the guardians of
the State rights_, they cannot permit an infringement of those
rights by an unconstitutional exercise of power in the United
States Courts.
"_Resolved_, That in a Government like that of the United States,
where there are powers granted to the General Government and rights
reserved to the States, it is impossible, from the imperfection of
language, so to define the limits of each that difficulties should
not sometimes arise from a collision of powers; and it is to be
lamented that no provision is made in the Constitution for
determining disputes between the General and State Governments by
an impartial tribunal, when such cases occur.
"_Resolved_, That, from the construction which the United States
Courts give to their powers, the harmony of the States, if they
resist the encroachments on their rights, will frequently be
interrupted; and if, to prevent this evil, they should on all
occasions yield to stretches of power, the reserved rights of the
States will depend on the arbitrary powers of the Courts.
"_Resolved_, That should the independence of the States, as secured
by the Constitution, be destroyed, the liberties of the people in
so extensive a country cannot long survive. To suffer the United
States Courts to decide on State rights, will, from a bias in favor
of power, necessarily destroy the federal part of our Government;
and, whenever the Government of the United States becomes
consolidated we may learn from the history of nations what will be
the event."
To prevent the balance between the General and State Governments from
being destroyed, and the harmony of the States from being interrupted--
"_Resolved_, That our Senators in Congress be instructed, and our
Representatives be requested, to use their influence to procure
amendment to the Constitution of the United States, that an
impartial tribunal may be established to determine disputes
between the General and State Governments; and that they be
further instructed to use their endeavors that, in the meantime,
such engagements may be made between the Governments of the Union
and of the State as will put an end to existing difficulties."
Those resolutions were transmitted to Congress by President Madison.
They were never acted upon.
My next reference is to the Remonstrance of the State of Massachusetts
against the War of 1812, adopted June 18th, 1813--from the _American
State Papers_, vol. 21, page 210:
"The Legislature of Massachusetts, deeply impressed with the
sufferings of their constituents, and excited by the apprehension
of still greater evils in prospect, feel impelled by a solemn sense
of duty to lay before the National Government their views of the
public interests, and to express, with the plainness of freemen,
the sentiments of the people of this ancient and extensive
Commonwealth.
"Although the precise limits of the powers reserved _to the several
State sovereignties_ have not been defined by the Constitution, yet
we fully concur in the correctness of the opinions advanced by our
venerable Chief Magistrate, that our Constitution secures to us the
freedom of speech, and that, at this momentous period, it is our
right and duty to inquire into the grounds and origin of the
present war, to reflect upon the state of public affairs, and to
express our sentiments concerning them with decency and frankness,
and to endeavor, so far as our limited influence extends, to
promote, by temperate and constitutional means, an honorable
reconciliation. * * * _The States, as well as the individuals
composing them, are parties to the National Compact; and it is
their peculiar duty, especially in times of peril, to watch over
the rights and guard the privileges solemnly guaranteed by that
instrument._"
There were also a set of resolutions, which I will not take time to
read, passed by the Legislature of New Jersey, November 27th, 1827,
which will be found in the _American State Papers_, vol. 21, page 797.
They were based upon the then prevalent opinion that the Constitution
had not conferred upon the Supreme Court of the United States the power
to decide disputed questions of boundary, or similar questions, between
States of the Union, and proposed an amendment to remedy that
difficulty, expressly recognizing that the right to resort to force in
such cases necessarily resulted from the omission. The decision of the
Supreme Court, in the case of _Rhode Island_ vs. _Massachusetts_, that
it possessed that jurisdiction, conjured that danger. The greater one,
however, of there being no tribunal to administer justice between the
federal and State sovereignties, remains.
I will also refer to one other resolution, passed by the Legislature of
the State of New York, on the 29th January, 1833, upon the
Nullification Ordinances, as they were called:
"_Resolved_, That we regard the right of a single State to make
void within its limits the laws of the United States, as set forth
in the Ordinance of South Carolina, as wholly unauthorized by the
Constitution of the United States, and, in its tendency, subversive
to the Union and the Government thereof."
I do not know that any sane man will now dispute that truth; but
this follows. The present Secretary of State of the United States,
at that time a member of the Senate of this State, then moved:
"That this Legislature do adhere, in their construction of the
Constitution, to the principle that the reserved rights of the
States, not conceded to the General Government, ought to be
_maintained and defended_."
This latter resolution was indefinitely postponed.
I will not now stop to read what was said by President Buchanan, in his
Message to Congress, on December 4th, 1860, as to the consequences of a
refusal by the States to repeal the obnoxious laws which had been
enacted. You will recollect that he said that, if that was not done,
the injured States would be justified, standing on the basis of the
Constitution, in revolutionary resistance to the Government of the
Union. I do not need to claim that, for I have nothing to do, on this
trial, with the justice of these mighty questions, debated between the
General Government and the governments and people of these States. The
question of their justice or injustice does not arise upon this trial.
I was simply making these citations to show that, by the ablest writers
cotemporaneous with the Constitution, and who performed the work of
framing it--by the proceedings of legislative bodies and the decisions
of the Supreme Court--the principle has been recognized that, in all
cases in which jurisdiction has not been given to the judiciary over
questions between the General Government and the State, they are equal,
co-ordinate, each possessed of the right to decide for itself as to the
excess by the other, if it is claimed that there is an excess of
constitutional power, and to assert its own right or repel the
encroachments of the other by force.
I say, in further confirmation of this, that the offence of treason
against the United States, under the 3d section of the 3d article of
the Constitution of the United States, must be a levying of war against
them all. The words, "United States," in that section, mean the States,
and not merely the Government of the Union. This is evident from the
fact that the section, as originally reported (being sec. 2 of art. 7),
read: "Treason against the United States shall consist only in levying
war against the United States, OR ANY OF THEM; and in adhering to the
enemies of the United States, OR ANY OF THEM," &c. (Journal of the
Convention, page 221). It was amended so as to read collectively only,
and not disjunctively. When, however, the act done is not under
authority of a State, I concede that levying war against the General
Government is levying war against all the States.
And, in this connection, I wish to refer to the proceedings, which I
have hastily adverted to in opening to the Jury, upon the adoption of
the section of the Constitution relating to treason. I refer to the
_Madison Papers_, vol. 3, page 1370:
"Art. 7, sec. 2, concerning treason, was then taken up.
"_Mr. Gouverneur Morris_ was for giving to the Union an exclusive
right to declare what should be treason. In case of a contest
between the United States and a particular State, the people of the
latter must, under the disjunctive terms of the clause, be traitors
to one or other authority.
"_Dr. Johnson_ contended that treason could not be both against the
United States and individual States, being an offence against the
sovereignty, which can be but one in the same community.
"_Mr. Madison_ remarked that as the definition here was of treason
against the United States, it would seem that the individual States
would be left in possession of a concurrent power, so far as to
define and punish treason particularly against themselves, which
might involve double punishment."
The words, "or any of them," were here stricken out by a vote.
"_Mr. Madison_: This has not removed the difficulty. The same act
might be treason against the United States, as here defined, and
against a particular State, according to its laws.
"_Dr. Johnson_ was still of opinion there could be no treason
against a particular State. It could not, even at present, as the
Confederation now stands--_the sovereignty being in the Union_;
much less can it be under the proposed system.
"_Colonel Mason: The United States will have a qualified
sovereignty only. The individual States will retain a part of the
sovereignty._ An act may be treason against a particular State,
which is not so against the United States. He cited the rebellion
of Bacon, in Virginia, as an illustration of the doctrine.
"_Mr. King_: No line can be drawn between levying war and adhering
to the enemy, against the United States, and against an individual
State. Treason against the latter must be so against the former.
"_Mr. Sherman_: Resistance against the laws of the United States,
as distinguished from resistance against the laws of a particular
State, forms the line."
_Mr. Ellsworth_, afterwards Chief Justice of the Supreme Court of the
United States, closed the debate in these memorable words:
"The United States are sovereign on one side of the line dividing
the jurisdictions; the States, on the other. _Each ought to have
power to defend their respective sovereignties._"
Now, if your honors please, it will probably be attempted to be
answered to the argument, that by section 10 of article 1 of the
Constitution of the Union, the States are forbidden to enter into any
treaty, alliance, or confederation, or to grant letters of marque and
reprisal; or, without the consent of Congress, to enter into any
agreement or compact with another State; or to engage in war, unless
actually invaded, or in such imminent danger as will not admit of
delay. This does not conflict with, but, on the contrary, confirms, the
views I have presented, for the following reasons:
The prohibition against entering into any treaty, alliance, or
confederation, and against granting letters of marque and reprisal, has
clearly no reference whatever to the relations which the States of the
Union sustain to each other. It refers solely to their relations
towards foreign powers.
I beg to cite, upon that subject, from Grotius, Lib. 1, chap. 4, sec.
13. He says:
"In the sixth place, when a King has only a part of the
sovereignty, the rest being reserved to the people, or to a Senate,
if he encroaches upon the jurisdiction which does not belong to him
he may lawfully be opposed by force, since in that regard he is not
at all sovereign. This is the case, in my opinion, even when in the
distribution of the sovereign power the power of making war is
assigned to the King. _For the grant of such a power must in that
case be understood only in its relation to wars with foreign
powers, those who possess a part of the sovereignty necessarily
having at the same time the right of defending it_; and when a
necessity arises of having recourse to forcible resistance against
the King, he may, by right of war, lose even the part of the
sovereignty which incontestibly belonged to him."
I say, then, in the next place, that if any of the States, having come
into collision with any of their sister States, or with the General
Government, and being threatened with invasion or overthrow in the
contest, resort to letters of marque as a means of weakening their
adversary, and thereby preventing or retarding the threatened invasion,
their right to do so is not at all affected or impaired by that
provision of the Federal Constitution. The right of resistance includes
it as well as every other means of rendering resistance effectual.
So also with regard to the prohibition against entering into any
treaty, alliance, or confederation, which is coupled with the
prohibition against granting letters of marque in the first paragraph
of the tenth section. That that prohibition is restricted to compacts
or agreements with foreign powers, is manifest from the whole structure
of the section.
The second paragraph of the section provides that no State shall,
without the consent of Congress, enter into any agreement or compact
with another State. It follows that, conceding the invalidity of the
State acts of separation from the Union, which the whole of the
preceding argument admits, the Confederation of the States claiming to
have separated is not valid against the authority of the Union; but the
individual States, in ratifying the Constitution of the so-called
Confederate States, have done more than to make an agreement or compact
with each other. Each one of them, separately, has conferred upon the
same agent the authority to issue the commission in question, as its
act.
Moreover, this second paragraph of the tenth section strongly confirms
the doctrine of the right of forcible resistance of the States in the
Union. It permits a State, without the consent of Congress, to engage
in war when actually invaded, or in such imminent danger as will not
admit of delay. This, it will be remembered, is in the paragraph of the
section imposing restrictions upon the States, and clearly justifies
forcible resistance, rising even to the dignity of war, by one State,
to aggressive invasion, from another or others, when the danger is so
imminent that it will not admit of delay.
The same paragraph also permits individual States to keep troops and
ships of war, in time of war. The word "troops" here is evidently used
in the sense of regular troops, forming an army, in contradistinction
to the ordinary State militia.
To apply, then, these principles to the facts of this case: The
President of the United States had, by proclamation, on the 15th April
last, called for military contingents from the various States of the
Union, to put down resistance to the exercise of federal authority in
the State of South Carolina and other Southern States.
Those States had, by their Legislatures and Conventions of their
people, decided that a proper case for resistance to the federal
authority claimed to be exercised within their borders had arisen, and
had authorized and commanded such resistance.
The 5th section of the Act of July 13th, 1861, and the President's
Proclamation of August 16th, under that Act, concede that the
resistance was claimed to be under authority of the State governments;
that that claim was not disavowed by the State governments; and
Congress thereupon legislated, and the President exercised the
authority vested in him by the Act, on the assumption that such was the
fact,--prohibiting commercial intercourse with those States,
authorizing captures and confiscations of the property of their
citizens without regard to their political affinities, and placing
them, as we contend, in all respects, upon the footing of public
enemies.
They were, moreover, threatened with immediate invasion. The
Proclamation of the President assigned, as their first probable duty,
to the military contingents called for from other States, to repossess
the Federal Government of property which it could not repossess without
an actual invasion of the discontented States.
The Congress of the Union was not then in session. It had adjourned,
after having omitted to confer upon the Federal Executive the power to
resort to measures of coercion, which had been under discussion during
its sitting.
The commission in question was issued as one of the measures of
forcible resistance to this exercise of federal power, claimed--whether
rightfully or wrongfully, is not the question here--to be unlawful by
the governments of all the States against which it was directed, and to
which those governments enjoined forcible resistance upon, and
authorized it by, their citizens.
I contend, therefore, that whether the action of the Federal Government
or of the State government was justifiable or unjustifiable, no citizen
of any of the States which authorized and enjoined such resistance is
criminally responsible, whether he espoused one side or the other in
the unhappy controversy, either to the General Government or to the
government of the State of which he is a citizen, so long as he acted
in good faith, and in the honest belief that the government to which he
adhered was acting within the legitimate scope of its constitutional
powers. We contend that every sovereign has necessarily power to defend
its sovereignty, and to decide the mixed question of law and fact as to
whether it has been infringed; that there can be no sovereign, or
defence of sovereignty, without subjects to whom the sovereign's
mandate and authority are a protection; and that as one sovereign
cannot lawfully punish another, who is his equal, by personal pains and
penalties, for resistance, after he is subdued, so neither can punish
the subject of both who, in good faith and under honest convictions of
duty, adhered to either in the struggle.
Now, if your honors please, I pass to the next proposition, which is:
That the defendants, who are citizens of the States calling themselves
Confederate States, cannot be convicted under this indictment, if they
in good faith believed, at the time of the capture of the Joseph, that
the political _status_ of those States, as members of the Federal
Union, had been legally terminated, and that they had thereby ceased to
be citizens of the United States, and made the capture in good faith,
under the commission in evidence, as a belligerent act,--such States
being, as they supposed, at war with the United States.
It is not necessary for me, if your honors please, to enlarge upon
that. I rely, for that proposition, on the same authorities that I have
already cited to the point, that robbery or piracy cannot be committed,
unless it is committed with felonious or piratical intent. But I say,
with reference to the validity or invalidity of those acts of
separation from the Union, that the counsel for the prisoners, whatever
their private convictions may be, are not at liberty to concede their
invalidity, so long as that concession may affect the lives of their
clients. Their validity has been maintained by some of the ablest
lawyers of the country, and in the Senate of the United States itself,
and by all the authorities, legislative, executive and judicial, of the
States which have adopted them. If, as they undoubtedly did, the
prisoners _bona fide_ believed in their validity, the argument in favor
of the protection afforded by the commission, or, by what comes to the
same thing, the absence of criminal intent, becomes so much the more
irresistible. And even though wholly invalid, such illegal action could
not deprive the citizen of the State of the shield and protection
afforded him by the action of the State government authorizing
resistance, and regarded as still continuing a member of the federal
Union.
The next proposition is:
That under the state of facts existing in South Carolina, as
established by the public documents and other evidence in the cause,
those administering the Government of the so-called Confederate States
constituted the _de facto_ Government which replaced the Government of
the United States in those States before and at the time of the
commission of the acts charged in the indictment; and the defendants
who are citizens of those States were justified by overpowering
necessity in submitting to that Government, in yielding their
allegiance to it, and thenceforth in actively aiding and supporting it;
and that the capture of the Joseph, having been a belligerent act in a
war between such _de facto_ Government, and the people of the States
which had submitted to its authority on the one side, and the United
States on the other, such defendants cannot be convicted under this
indictment.
Now, with reference to that, allow me to call your honors' attention to
but a single authority, in addition to those which I cited in my
opening remarks to the Jury. It is the case of _The United States_ vs.
_The General Parkhill_, decided by Judge Cadwalader, in the United
States District Court, in Philadelphia, in July, 1861. He says:
"The foregoing remarks do not suffice to define the legal character
of the contest in question. It is a civil war, as distinguished
from such unorganized intestine war as occurs in the case of a mere
insurrectionary rebellion.
"Civil war may occur where a nation without an established
Government is divided into opposing hostile factions, each
contending for the acquisition of an exclusive administration of
her Government. If a simple case of this kind should occur at this
day, the Governments of the nations not parties to the contest
might regard it as peculiarly one of civil war. As between the
contending factions themselves, however, neither could easily
regard their hostile opponents in the contest otherwise than as
mere insurgents engaged in unorganized rebellion. Thus, in the
language of Sir M. Hale, every success of either party would
subject all hostile opponents of the conqueror to the penalties of
treason. A desire to prevent the frequency of such a result was the
origin of the rule of law, that allegiance is due to any peaceably
established Government, though it may have originated in
usurpation. The statute of 11 H. 7, c. 1 (A.D. 1494), excusing an
English subject who has yielded obedience, or who has even rendered
military service to a Ruler who was King in fact, though not in
law, was declaratory of a previous principle of judicial decision."
After referring to Bracton, Coke, Hawkins, and Foster, the learned
Judge proceeds:
"It has already been stated that a King in whose name justice was
administered in the Courts of law was usually regarded as in actual
possession of the Government.
"Civil war of another kind occurs where an organized hostile
faction is contending against an established Government, whose laws
are still administered in all parts of its territory except places
in the actual military or naval occupation of insurgents or their
adherents.
"In such a case the question has been, whether a place in the
actual military occupation of the revolutionary faction, or of its
adherents, may, under the law of war, be treated by that Government
as if the contest was a foreign war and the place occupied by
public enemies. In the case of a maritime blockade of such a place,
the affirmative of this question was decided in England, in the
year 1836. It had previously been so decided by the Supreme
Tribunal of Marine, at Lisbon (3 Scott, 201; 2 Bingh., N.C., 781)."
Judge Cadwalader then refers to Grotius (Proleg., sec. 23), citing with
approval the statement by Demosthenes of the rule of public law in the
case of the invasion by Deiopeithes, the Athenian commander in the
Chersonese, of the dominions of Philip of Macedon, who had sent a
military force to the relief of Cardia, when sought to be reduced to
submission by Deiopeithes--that wherever judicial remedies are not
enforceable by a Government against its opponents, the proper mode of
restoring its authority is war,--and continues:
"This doctrine is of obvious applicability to civil war of a third
kind, which occurs where the exercise of an established
Government's jurisdiction has been revolutionarily suspended in
one or more territorial Districts, whose willing or unwilling
submission to the revolutionary rule prevents the execution of the
suspended Government's laws in them, except at points occupied by
its military or naval forces. The present contest exemplifies a
civil war of this kind. It was also, with specific differences,
exemplified in the respective contests which resulted in the
independence of the United Netherlands and of the United States."
He then proceeds:
"Within the limits of two of the States in which so-called
ordinances of secession have been proclaimed the execution of the
laws of the United States has not been wholly suppressed. They are
enforceable in the Western Judicial District of Virginia, and
perhaps in the adjacent Eastern Division of Tennessee. In the
other nine States which profess to have seceded, including South
Carolina, those laws are not enforceable anywhere.
"The Constitution of the United States prohibits the enactment by
Congress of a bill of attainder, and secures, in all criminal
prosecutions, to the accused, the right to a speedy public trial,
by Jury of the State and District wherein the crime shall have
been committed, which District must have been previously
ascertained by law. Therefore if a treasonable or other breach of
allegiance is committed within the limits of one of these nine
States, it is not at present punishable in any Court of the United
States. This was practically shown in a recent case (Greiner's
case, _Legal Intelligencer_, May 10, 1861). War is consequently
the only means of self-redress to which the United States can, in
such a case, resort, for the restoration of the constitutional
authority of their Government.
"The rule of the common law is, that when the regular course of
justice is interrupted by revolt, rebellion, or insurrection, so
that the Courts of justice cannot be kept open, civil war exists,
and hostilities may be prosecuted on the same footing as if those
opposing the Government were foreign enemies invading the land.
The converse is also regularly true, that when the Courts of a
Government are open, it is ordinarily a time of peace. But though
the Courts be open, if they are so obstructed and overawed that
the laws cannot be peaceably enforced, there might perhaps be
cases in which this converse application of the rule would not be
admitted. (1 Knapp, 346, 360, 361; 1 Hale, P.C. 347; Co. Litt. 249
_b_.)"
Now, if your honors please, the last proposition with which I am
compelled to trouble you is:
That the Acts of Congress and the Proclamations of the President since
the outbreak of the present struggle evidence the existence of a state
of war between the Federal Government and the States calling
themselves the Confederate States from a time anterior to the
performance of the acts charged in the indictment, in which all the
citizens of those States are involved and treated as public enemies of
the Federal Government, whether they had any agency in initiating the
conflict or not; and that the natural law of self-preservation, under
these circumstances, justified the defendants, who are citizens of
those States, in the commission of the acts charged in the indictment,
as a means of weakening the power of destruction possessed by the
Federal Government.
Now the counsel on the other side, from the intimation which he gave
when he addressed the Court, intended to treat that subject of a _de
facto_ Government, or whatever it was, on the footing of men under
duress, not in danger of their lives, joining with rebels and aiding
them in a treasonable enterprise. Your honors will perceive that was
not the footing on which we put it at all. It was the footing on which
it stood at one time, when rebellion first broke out, when forts were
seized--acts which it is no part of the duty of counsel on this trial
to justify or say anything about, because there is no act connected
with that part of the struggle which is in evidence on this trial. But
on that I wish to refer to what Judge Cadwalader said in another
case--that of _Greiner_--which undoubtedly the learned counsel for the
Government had in his mind when he drew that distinction. Shortly
before the late so-called secession of Georgia, a volunteer military
company, of which _Greiner_ was a member, by order of the Governor,
took possession of a fort within her limits, over which jurisdiction
had been ceded by her to the United States, and garrisoned it until
her ordinance of secession was promulgated, when, without having
encountered any hostile resistance, they left it in the possession of
her Government. A member of this company, Charles A. Greiner, who had
participated in the capture and detention of the fort, afterwards
visited Pennsylvania, at a period of threatened if not actual
hostilities between the Confederate States and the United States. He
was arrested in Philadelphia, under a charge of treason. Your honors
will very readily perceive what a difference there was between that
case and this. Judge Cadwalader applies the rule in reference to that;
and, speaking of this doctrine of allegiance due to a Government in
fact, he says:
"This doctrine is applicable wherever and so long as the duty of
allegiance to an existing Government remains unimpaired. When this
fort was captured, the accused, in the language of the Supreme
Court, owed allegiance to two Sovereigns, the United States and
the State of Georgia (see 14 How. 20). The duty of allegiance to
the United States was co-extensive with the constitutional
jurisdiction of their Government, and was, to this extent,
independent of, and paramount to, any duty of allegiance to the
State (6 Wheaton, 381, and 21 Howard, 517). His duty of allegiance
to the United States continued to be thus paramount so long at
least as their Government was able to maintain its peace through
its own Courts of Justice in Georgia, and thus extend there to the
citizen that protection which affords him security in his
allegiance, and is the foundation of his duty of allegiance.
Though the subsequent occurrences which have closed these Courts
in Georgia may have rendered the continuance of such protection
within her limits impossible at this time, we know that a
different state of things existed at the time of the hostile
occupation of the fort. The revolutionary secession of the State,
though threatened, had not then been consummated. This party's
duty of allegiance to the United States, therefore, could not then
be affected by any conflicting enforced allegiance of the State.
He could not then, as a citizen of Georgia, pretend to be an enemy
of the United States, in any sense of the word 'enemy' which
distinguishes its legal meaning from that of traitor. _Future
cases may perhaps require the definition of more precise
distinctions and possible differences under this head. The present
case is, in my opinion, one of no difficulty, so far as the
question of probable cause for the prosecution is concerned._"
Having decided that, in the present state of things, he could not
commit the prisoner for trial, to be conveyed to Georgia, because
there were no Courts of the United States there, and because it would
be a violation of the Constitution of the United States--that he could
not have a speedy trial--he decided that, under a subsequent act of
Congress, he had a right to require the prisoner to find sureties to
be of good behavior towards the United States.
I have thus ended what I had to say upon this subject, with but one
single exception.
A great deal will be said, undoubtedly, on the part of the
prosecution, here, with reference to this being a revolutionary
overthrow of the Government of the United States in the States which
have taken these steps. I have only to ask, in reference to
that--conceding it, for the sake of argument, in its fullest
extent--what was the adoption of the Constitution of the United States
but a revolutionary overthrow of the previously existing
Confederation? It was done by nine States, without the consent of
four, whose consent was necessary, and the Government of the United
States went into operation; and it was a long time before at least two
of them came in under the new Government.
_Mr. Evarts_: Will my learned friend allow me to ask him, in that part
of his argument which proceeds upon the right of a State, yet being a
State, to justify the acts of its citizens, to explain the proposition
that a State can oppose the United States, within and under the
Constitution, in regard to any law of the United States about which
this essential right of judgment, whether the aggression of the United
States has carried it beyond the powers of the Constitution, or not,
is claimed to exist?
_Mr. Larocque_: I thought I had been very explicit on that. I said, in
the first place, that I had nothing to do with the question of right
or wrong. I said this: That a collision had occurred between the
government of the State and the Federal Government; that each being
sovereign, within the limitation of its powers, had a right to judge
for itself whether the occasion for such a collision had occurred, or
not; that these prisoners, citizens of the States which had decided
that such a case had occurred, as subjects owing allegiance to two
equal and co-ordinate sovereigns, which had come into hostile
collision with each other, must exercise, upon their consciences,
their election to which Sovereign they would adhere; and that,
whatever may be the unfortunate consequences, they are not responsible
before the tribunal of the other sovereignty because they adhered to
one of them; that they would be no more responsible before the
criminal tribunals of South Carolina if, in this contest, they had
adhered to the General Government and borne arms against their native
State, than they are responsible in the tribunals of the Federal
Government because, exercising their own consciences, they had adhered
to the State and not to the Federal Government. I say it is like the
case of a child whose parents disagree, and who is obliged to adhere
either to his father or his mother; and that he violates no law of God
or of man in adhering to either.
_Mr. Smith_: If the Court please, I rise for a purpose different from
the remark that I wish to make in reply to the last illustration of my
learned friend. I might say that the instance of a child is one very
parallel to that we might have given--that the father is the superior
authority, where there is a difference between two parents.
I rise, however, to present to the Court, as one of the authorities,
or rather a citation which will receive its respectful consideration,
the Charge of Mr. Justice Grier, in the case tried in Philadelphia;
and also the opinion of Judge Cadwalader, in the same case.
_Mr. Brady:_ Who reported this?
_Mr. Smith_: I received it, by telegraph, from the District Attorney
of Philadelphia; and it is also printed in a newspaper published last
evening in Philadelphia. I have compared them, and the two accounts
perfectly agree. I do not cite them as authority, but as entitled to
the respectful consideration of the Court.
_Mr. Brady_: As, now-a-days, what the newspapers publish one day they
generally contradict the next, I think any report should be taken with
some grains of allowance, at least. I suppose I would recognize the
style of Judge Grier.
_Mr. Blatchford_: I think you will, on examining it. It is evidently
printed from the manuscript.
_Mr. Smith_ read the charge of Judge Grier in the case of the
privateers tried in Philadelphia.
_Mr. Brady_: Tell me what question of fact was there left to the Jury?
_Mr. Smith_: I refer you to Judge Cadwalader's opinion, which is much
longer.
_Mr. Brady_: I do not see that there was anything left for the Jury.
Judge Grier decided that case,--which undoubtedly he could do, for he
is a very able man.
_Mr. Sullivan_ put in evidence the log-book of the Savannah.