Part 33 (1/2)

I want to call your attention to another thing, as I go along with this line of the argument. I contend that, among the powers which have been delegated to the State governments by the Const.i.tutions of the States, is the power in the executive government of the State, co-ordinately with the General Government, to decide whether itself or the General Government has transcended the line which bounds their respective jurisdictions, upon any case in which a collision may arise between them, which affects the public domain of the State, or the whole State, or its citizens, considered as a body politic. And you will see, in a moment, the reason why I state my proposition in that way.

You have all heard of what, in the history of the country, has been called _nullification_, and you probably all understand very nearly what that is. By _nullification_, as it has been spoken of in the history of our country, was meant the claim on the part of a State, by a convention of its people, or otherwise, to decide that the laws of the United States should not operate within its limits upon its citizens, in cases where the law could legitimately operate upon individual citizens. Because you will all recollect that the laws of the United States, in their operation throughout the Union--their criminal laws, laws for the collection of duties, and similar laws--operate upon individual citizens, without reference to whether they are citizens of one State or another. The law operates upon them as people of the United States. And therefore, if you are carrying on business in the port of New York, and a consignment comes to you, it is a question between you as a citizen of the United States and the Government whether the tariff, under which duties are attempted to be collected is valid, as between you and the Government, or not--whether it was legitimate for Congress to pa.s.s that tariff; and, in all cases arising on these subjects, the Const.i.tution has provided a tribunal, an arbiter, which is supreme and final, without any appeal. For instance, if you deny the validity of the law under which duties are attempted to be collected upon the goods imported by you, and the Collector attempts to collect them, you refuse to pay, or pay under protest,--and the case must come into the District Court of the United States; and if the Court decides that the law was unconst.i.tutional, you get immediate redress; if it decides that it was const.i.tutional, the question can be carried to the Supreme Court of the United States, and there finally settled. And, therefore, I say that in all cases that come within the purview of the judicial department of the Government, the laws of the United States, as administered by the Courts, and their decisions, bind the citizens of the States in every part of the land.

But, gentlemen, there are an immense cla.s.s of cases constantly arising where no opportunity can ever be presented to a Court to pa.s.s upon them, which were never intended to be pa.s.sed upon by a Court, which are cases of collision between the executive department of the General Government and the State government in matters, as I expressed it to you before, affecting the public domain, or the State or its citizens as a body politic. As laid down by the expounders of the Const.i.tution of the United States, that instrument is one to which the States are parties, as well as the people of the United States and people of each State.

Suppose a case of this kind. It is not a case likely to arise; but every case may arise, as we have been sadly admonished by the events of the last few months. Suppose we had a President in the executive chair at Was.h.i.+ngton who was a citizen of the State of Ma.s.sachusetts, and greatly interested in the prosperity of the commerce of the City of Boston; and suppose that, being a wicked man (for wicked men have been sometimes elected to offices in this and every country), he had conceived the iniquitous design of ruining the commerce of New York, for the purpose of benefiting the commerce of the City of Boston; and suppose, in the prosecution of that wicked design, without the pretense of authority to do so under the Const.i.tution of the United States, without a pretense that Congress had pa.s.sed any law authorizing him to do anything of the kind, he should station a fleet of vessels, by orders to the commander of his squadron, off the harbor of New York, and should say, from this day forward the commerce of the port of New York is hermetically closed, and the commerce which has formerly gone to New York must go to Boston. Is the State of New York, under a condition of things of that kind, to submit to the closing of her commerce, to her ruin and destruction? Can she get before the Courts for redress against such an infringement of the Const.i.tution by the President? How is she to get there? She cannot go to the Supreme Court of the United States, for in the Courts of the United States there is no form of jurisdiction by which the question can be brought before the Courts by any possibility whatever; and New York is a sovereign and independent State, and, so far as she has not conceded jurisdiction to the United States by the Const.i.tution, has a right to exercise every sovereign and independent power that she has. _There_ is a case, therefore, in which the Courts of law can afford no redress,--in which the Const.i.tution has erected no common arbiter between the General Government and the government of the State.

Who, then, is the arbiter in such a case? Why, gentlemen, the books have expressed it. It is the last argument of Kings--it is the law of might; and in case of a collision of that kind, I maintain before you, upon this trial, that the State has a right to redress herself by force against the General Government; that she has a right, if necessary, to commission cruisers, to drive the squadron away from the port of New York; and she has a right, if more effectual, to commission private armed vessels to aid in driving them away, or to capture or subdue them. There being no common arbiter between her and the General Government in a case of that kind, she has a right to use force in redressing herself, and to take the power into her own hands.

And the authorities are uniform upon that subject. I have been obliged to detain you so long that I shall not read them to you; but I have them collected before me, and in the future discussions which may take place before the Court I shall be able to show that that right was maintained by Hamilton, one of the most distinguished members of the Convention who helped to frame the Const.i.tution, and the strongest advocate of placing large powers in the hands of the Federal Government; by Madison, Jefferson, and all the Fathers of the Const.i.tution, and by all who have written upon the subject; that it is a doctrine which has been a.s.serted by the Legislature of the State of New Jersey, and, indeed, by the State Legislatures of all the States, pretty much, in which the question has arisen--that the Supreme Court of the United States have themselves over and over again declared that the only safeguard that existed, under the Const.i.tution, against the right of the State to come into collision with the General Government, in all cases whatever, was the existence of the judiciary power, in cases where that was applicable between them, and that in all cases where that judiciary power failed, they were left to the law of nature and the might of Kings to redress themselves.

Now, gentlemen, if I am right in that step in my argument,--if that right would exist at any time or under any circ.u.mstances,--there must be some authority, in the State that has the jurisdiction, to decide for the citizens of the State when that occasion has arisen; and there must be some authority in the United States which has a right to decide for the Government of the United States when that occasion has arisen; whose decision (that is, in the General Government) is binding for the people of all the States, except the State in collision with the Federal Government and which makes a contrary decision; and whose decision, in that State, is an authority and protection for all the citizens of that State.

I say to you, moreover, gentlemen, that that right, under the law of nature, to resist the attempted usurpation of a power which has not been granted by the Const.i.tution, resides, in a State, in the executive government, and necessarily in the Governor of the State; because you will recollect one of the premises upon which we started was, that all the residuary power in the government, beyond what had been expressly ceded to the Government of the United States by the Federal Const.i.tution, is, by the Const.i.tution, reserved to the State; and the Governor of the State is the sentinel upon the watch-tower for the protection of the rights of the State. He is placed in that position to watch the danger from afar. He communicates with the General Government. Any steps taken having reference to the State, pa.s.s under his inspection; and he alone has the materials within his reach for knowing the circ.u.mstances and deciding upon the facts in regard to the question whether the General Government is acting within the const.i.tutional limit of its powers, or whether it is guilty of any usurpation of power, in any claim of authority it makes with reference to the affairs of the State. Because, in the case I have supposed, of a President elected from the State of Ma.s.sachusetts, seeking to destroy the commerce of New York, and stationing a fleet off the harbor, it is not likely that a President who was guilty of such wickedness would avow that he did it for the purpose of building up the commerce of Boston and destroying that of New York. No; he would say that he had notice of a hostile invasion--a fleet leaving the coast of Great Britain or of some other maritime power to make a descent upon New York,--that he had notice of some threatened injury to New York, which would make it necessary to station a fleet there, and to prevent vessels from entering or leaving. The Governor alone would have the means of ascertaining whether there was any foundation in truth for that, or whether it was a mere pretence to cover his iniquitous purpose; and in determining the case whether the Federal Government is exceeding its power or not, or acting within the const.i.tutional limit of its power, the Governor has to deal with a compound question of law and fact. He must first read the Const.i.tution of the United States, and ascertain its grant of power, and then compare that with the facts as presented to him; and upon that comparison the jurisdiction is placed in him to decide whether the act of the General Government is within its power, or a transgression of it.

He decides the question, and what more have we then? He is, by his office, commander-in-chief of the military and naval forces of the State; for the State can have both military and naval forces. It has its militia at all times. It is authorized expressly by the Const.i.tution to keep s.h.i.+ps of war, in time of war. There is, certainly, a prohibition in the Const.i.tution of the United States against a State granting letters of marque; but that is a prohibition against its granting letters of marque in a war against foreign States; it has no reference whatever to any possible collision that may take place between the State and the Federal Government. And that rule is laid down by _Grotius_ and _Vattel_ both; for they both maintain and a.s.sert the right of the people, under every limited Const.i.tution, in the case of a palpable infringement of power by the chief of the State, forcibly to resist it; and GROTIUS puts the case of a State with a limited Const.i.tution, having both a King and a Senate, in which the power of declaring war was in express terms reserved to the King alone, and he says that by no means prevents the Senate, in case of an infringement of the Const.i.tution by the King, from declaring and making war against him; because the phrase is to be understood of a war with foreign nations and not of an internal war. I say, therefore, that in a case of that kind--a palpable infringement by the General Government of the Const.i.tution--the Governor of the State, in the first place, has the only means and the only right of deciding whether that infringement has taken place.

In each State the Governor is commander-in-chief of the naval and military forces; he has a right to give military orders to citizens; he has a right to order them to muster in the service of the State; and if they disobey him they can be punished the same as they can in any civilized country.

And more than that: suppose a case arises of that kind, in which the General and State Governments come into forcible collision, and suppose a citizen should take arms against the State; there is the law of the State which punishes for treason every citizen of the State who adheres to its enemies, giving them aid and comfort; and, under the theory of the prosecution, if he adheres to the State, and the Federal Government should happen to be the victor in the contest, there is the law of the Federal Government which punishes him for adhering to the State. So that the poor citizen of the State, if this theory be correct, is to be punished and hanged, whichever party may succeed in the unhappy contest.

But, gentlemen, the law perpetrates no such absurdity as that; for the very moment the doctrine for which I contend is admitted, the citizen, in a conflict like that between the Federal Government and the State, is not liable to be considered a traitor or punished as such, let him adhere to which of the two parties he pleases, in good faith. The reason of which is clear. He is the subject of two sovereigns,--the one the Federal Government and the other the State in which he lives.

Either of these sovereigns has jurisdiction to decide for him the question whether the other is committing a usurpation of power or not; and it inevitably follows that if these two sovereigns decide that question differently, the citizen is not to be punished as a traitor, let him adhere to which he pleases in good faith. And I submit to you, gentlemen, that is the only doctrine, under the Const.i.tution of the United States, and under our complex system of government, which can be admitted for a moment. I will give you a confirmation of that. I have already stated to you the clause of the Const.i.tution of the United States which defines the punishment of the crime of treason against the United States,--and by looking at the reports of the debates in the Convention which adopted the Const.i.tution, you will find that the clause, as originally reported to the Convention, read: ”Treason against the United States shall consist in levying war against the United States _or any of them_, or in adhering to the enemies of the United States, _or any of them_, giving them aid and comfort,”--and the clause, as reported, was amended by striking out the words, ”or any of them,” and making it read: ”Treason against the United States shall consist in levying war against them or in adhering to their enemies,”

&c. Therefore, under our Const.i.tution, treason against the United States must be levying war against all the States of this Confederacy.

It does not mean the Government. The amendment which I have spoken of shows it must be an act of hostility which is, in judgment of law, an act of hostility against all the States of the Union. Therefore I say that a citizen who owes allegiance to a State of the Union, when he acts in good faith, under the jurisdiction of one of the sovereigns to whom he owes allegiance--to wit, the State--does not levy war against the United States. He levies war against the Government which claims to represent him, in that case,--his other sovereign, to whom he equally owes allegiance, deciding that that Government is committing an usurpation of power; and he is acting under the authority of those in whom he rightly and justly reposes faith,--to whom has been delegated the right to decide; and however the Governor of the State may be punished by impeachment, if he has acted in bad faith, the citizen cannot be subject to the halter for doing that which he was under a legal obligation to do.

Then, gentlemen, to show the application of the rule for which I have been contending--and with the necessary details of which I fear I must have wearied you--to the case in hand: The moment it is conceded that any possible case can arise in which a State would have the right to resist by force the General Government,--the moment it is conceded that it is the Governor of the State, who, co-ordinately with the President of the Union, has a right to decide that question for himself,--then I say we have nothing whatever to do with the question, whether, under the unhappy circ.u.mstances which have arisen, the Governor of the State, or of any of the States, decided right or wrong. We know they did claim that the General Government was usurping power which did not belong to it. In fact, I think we have the confession of the President of the United States that, with an honest heart and with honest purposes, which I believe have actuated him all through, he has, as he says, for the preservation of the Union, the hope of humanity in all ages, and the greatest Government, as I shall ever believe, that man has ever created,--that he has been compelled to, and did, usurp power which did not belong to him. President Buchanan, before and after this controversy arose, a.s.serted plainly and unequivocally that he had searched the Const.i.tution and laws of the United States for the purpose of finding any color of authority for the invasion of a State by military force, or the using of force against it; and that he could find no such warrant in the Const.i.tution. He was right. There was nothing of the kind in the Const.i.tution; but he failed to see (in my humble judgment) that the law of nature gave him the power to enforce the legitimate authority of the Union, as it gave to the State government the power to repel usurpation. President Lincoln, when he a.s.sumed the reins of power, admitted that there was a doubt on that subject. He declared at first that it was not expedient to exercise that power, and that he would not exercise it. He changed his mind afterwards, and did exercise it; and on the 13th of April he issued a proclamation calling for 75,000 volunteers, the first duty a.s.signed to whom, as he stated in his proclamation, would be to invade the Southern States, for the purpose of recapturing the forts and retaking the places that had pa.s.sed out of the jurisdiction of the United States.

And in a subsequent proclamation he declared that he had granted to the military commanders of these forces, without the sanction of an Act of Congress, authority to suspend the writ of _habeas corpus_, within certain limits and in certain cases, in those States. And he makes the frank admission that, in his own belief at least, some of the powers which he had found himself compelled to exercise were not warranted in the Const.i.tution of the United States.

Now these acts of hostility complained of in the indictment took place long subsequent to that. This proclamation was in the month of April.

These commissions were not issued, and the Act of the Confederate States to authorize their issue was not pa.s.sed, until some time afterwards--after they had learned of this proclamation; and this commission was not granted until the month of June subsequent.

I say, therefore, a case was presented for the exercise of the jurisdiction of the Government of the United States, to decide whether it was exercising its rightful powers, under the Const.i.tution, and for the Governor of the State to decide, for the State, that same question; and that an unhappy case of collision, ever to be regretted and deplored, had arisen between the Government of the United States and the Government of those States; and I say that the citizens of any one of those States owing the duty of allegiance to two sovereigns--to the government of their State and to the Government of the United States--had a right honestly to make their election to which of the two sovereigns they would adhere, and are not to be punished as traitors or pirates if they have decided not wisely, nor as we would have done in the section of the country where we live.

I am sorry, gentlemen, to detain you on the question; but it is a most important one--one that enters into the very marrow of this case; and we do claim that the issuing of this commission, whether on the footing of its having been issued by a _de facto_ Government, or by authority from the State, considering it as remaining under the Const.i.tution, was a commission that forms a protection to the defendants, and one which is not within the purview of the Act of 1790; because it was not, in the language of that section, a commission taken by a citizen of the United States to cruise against other citizens of the United States, either from a _foreign_ Prince or State, or a person merely.

You will observe that if the claim of the Confederate States, that the ordinances of secession are valid, be correct, then it is true that they are foreign States; but their citizens have ceased to be citizens of the United States, and are therefore not within the purview of the ninth section of the Act of 1700.

If, on the contrary, the claim on the part of the Government of the United States, that these ordinances are absolutely void, be correct, then the States are still States of this Union, and the commission, being issued by their authority, is not a commission issued by a _foreign_ State, and therefore the case is not within the purview of the ninth section of the Act of 1790.

I must allude very briefly, before closing, to another ground on which this defence will be placed: and that is, that conceding (if we were obliged to concede) that this was not an authority, such as contemplated, to give protection to cruisers as privateers, there was a state of war existing in which hostile forces were arrayed against each other in this country, and which made this capture of the Joseph a belligerent act, even obliterating State lines altogether, for the purpose of the argument.

But before I pa.s.s from what I have said to you on the subject of the claim of authority of the States of this Union to come into collision with the General Government, allow me to call attention to the forcible precedents shown in the history of our own glorious Revolution, when the thirteen Colonies, numbering little more than three millions, instead of thirty, separated from Great Britain. At the time when that occurred, in 1776, this very statute of 1790 was in force in England, as I have shown you. It was pa.s.sed in England, if I recollect right, in 1694. The position of the thirteen Colonies towards the mother country, at that time, was precisely the position that those States which call themselves the ”Confederate States” now occupy towards the General Government of the Union.

Appealing to G.o.d, as the Supreme Ruler of the Universe, for the rect.i.tude of their intentions, and acknowledging their accountability to no other power, they had claimed to resist the usurpation of the King of Great Britain. They had not even claimed, at the time of which I speak--for I speak of the end of the year 1775 and the beginning of 1776--to declare their independence and to throw off their subjection to Great Britain. At that very early day there were very few in these Colonies that contemplated a thing of that kind, or whose minds could be brought to contemplate such an act. They had risen in resistance against what they claimed to be arbitrary power; they claimed that the King of Great Britain had encroached upon their rights and privileges in a manner not warranted by the Const.i.tution of Great Britain. They did not claim to secede from Great Britain; they did not claim to make themselves independent of subjection to her rule; they claimed to stop the course of usurpation which, they held, had been commenced; and they proposed to return under subjection to the British crown the very moment that an accommodation should be made, yielding allegiance to the King of Great Britain as in all time before. And now, gentlemen, on the 23d March, 1776, on a Sat.u.r.day, the little Continental Congress was sitting in the chamber, of which you have often seen the picture, composed of the great, wise, and good men, who sat there in deliberation over the most momentous event that has ever occurred in modern times, if we except that now agitating and convulsing our beloved country. I never heard one of those men stigmatized as a pirate. I never heard one of those men calumniated as an enemy of the human race. I have often heard them called the greatest, wisest, and best men that ever lived on the face of G.o.d's earth. I will read to you what occurred on the 23d March, 1776;--they being subjects of the King of Great Britain, and having never claimed to throw off allegiance to him, but claiming that he was usurping power which did not belong to him, and that they, as representatives of the thirteen Colonies of America, were the judges of that question and those facts, as we claim that the States are now the judges of this question and these facts.

They adopted the following preamble and resolutions:

”The Congress resumed the consideration of the Declaration, which was agreed to, as follows: