Part 41 (1/2)

”_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 ill.u.s.tration 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 Const.i.tution 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 a.s.signed 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 r.e.t.a.r.ding the threatened invasion, their right to do so is not at all affected or impaired by that provision of the Federal Const.i.tution. 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 Const.i.tution 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 s.h.i.+ps 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 a.s.sumption 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 a.s.signed, 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 const.i.tutional 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 pa.s.s 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 s.h.i.+eld and protection afforded him by the action of the State government authorizing resistance, and regarded as still continuing a member of the federal Union.