Part 19

Your honors, by referring to the case of The Bello Corunnes, 6 Wheaton, 152, will see the doctrine laid down distinctly, that acts may be piratical for all civil purposes which would not authorize the conviction of the perpetrators criminally as pirates; _e.g._, a citizen of the United States, taking from a State at war with Spain a commission to cruise against that power, contrary to the 14th art. of the Spanish Treaty;--and the Court held, in that case, that that would involve the consequences of a piracy, for the purpose of condemnation of property; but it would not be criminal piracy, under either the law of nations or of the United States.

On the general subject of privateers I had a reference to Vattel, but I do not think it necessary to read it, because the authorities on that subject cover it so fully.

I come now, if your honors please, to what my learned friend, when he addressed the Court on the part of the Government, has been pleased to call the political part of this case; and I have distinctly stated in my propositions what I contended for on that subject. In the first place, that the Federal Executive Government, and the executive governments of the States, under the Constitution of the United States, each possess the jurisdiction to decide whether their respective acts are within or exceed the limits of their respective constitutional powers, in cases of collision between them in their administrative acts, operating upon the public domain, or upon the State, or its citizens as a body politic.

I shall, without stopping for any discussion, simply state the subordinate propositions by which I think that is established, and give a reference to the authorities. I say, in the first place, as I said to the Jury, that citizens of the United States owe a divided allegiance, partly to the United States and partly to their respective States. They can commit treason against either; for the State constitutions and laws define and punish treason against the States, as the Constitution of the United States does treason against them.

The Federal and State Governments are each supreme and sovereign within the limits of their respective jurisdictions under the Federal and State Constitutions; each operates directly upon the citizen, and each also operates as a check and restriction upon the other, and upon the encroachments of the other, in seeking to extend beyond legitimate limits its jurisdiction over the citizen, or over the public domain common to both. Now, if your honors please, in regard to that, I will very briefly refer you to what I rely upon. I refer, in the first place, to sections 2 and 3, of Article 6th, of the Constitution of the United States.

"_Sec. 2._ This Constitution, and the laws of the United States, _which shall be made in pursuance thereof_, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

"_Sec. 3._ The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

In the amendments to the Constitution of the United States, Articles 9 and 10, we find this language:

"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I refer to the case of McCulloch _vs._ The State of Maryland, 4 Wheaton, p. 400, in which the opinion was delivered by Chief Justice Marshall. He says:

"No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass."

I cite particularly from pp. 402 and 410. On page 410 his language is as follows:

"In America, the powers of sovereignty are divided between the Government of the Union and those of the States. _They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other._ We cannot comprehend that train of reasoning which would maintain that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some State constitutions were formed before, some since, that of the United States. We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same as if they had been formed at the same time."

The next I refer to is the case of _Rhode Island_ agst. _Massachusetts_, 12 Peters, 889, where Judge Baldwin says:

"Before we can proceed in this cause, we must, therefore, inquire whether we can hear and determine the matters in controversy between the parties, who are two States of this Union, _sovereign within their respective boundaries, save that portion of power which they have granted to the Federal Government, and foreign to each other for all but federal purposes_."

I now refer to the case of _Livingston_ vs. _Van Ingen_, 9 Johnson, 574, where Chancellor Kent reasons thus:

"When the people create a single entire Government, they grant at once all the rights of sovereignty. The powers granted are indefinite and incapable of enumeration. Every thing is granted that is not expressly reserved in the constitutional charter, or necessarily retained as inherent in the people. _But when a Federal Government is erected with only a portion of the sovereign power, the rule of construction is directly the reverse, and every power is reserved to the members that is not, either in express terms or by necessary implication, taken away from them and rested exclusively in the Federal Head._"

"This rule has not only been acknowledged by the most intelligent friends to the Constitution, but is plainly declared by the instrument itself. This principle might be illustrated by other instances of grants of power to Congress, with a prohibition to the States from exercising the like powers; but it becomes unnecessary to enlarge upon so plain a proposition, as it is removed beyond all doubt by the 10th article of the amendments to the Constitution. That article declares that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The ratification of the Constitution by the Convention of this State was made with the explanation and understanding that 'every power, jurisdiction and right which was not clearly delegated to the General Government remained to the people of the several States, or to their respective State governments.' There was a similar provision in the articles of Confederation, and the principle results from the very nature of the Federal Government, which consists only of a defined portion of the undefined mass of sovereignty vested in the several members of the Union. There may be inconveniences, but generally there will be no serious difficulty, and there cannot well be any interruption of the public peace in the concurrent exercise of those powers. _The powers of the two Governments are each supreme within their respective constitutional spheres. They may each operate with full effect upon different subjects, or they may, as in the case of taxation, operate upon different parts of the same subject._"

I now refer to the Massachusetts Bill of Rights of 1780, art. 4. It reads:

"The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction and right, which is not, or may not hereafter be, by them expressly delegated to the United States of America, in Congress assembled."

I also refer to the New Hampshire Bill of Rights, of September, 1792:

"ART. 7. The people of this State have the sole and exclusive right of governing themselves as a free, sovereign and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction and right pertaining thereto, which is not, or may not hereafter be by them expressly delegated to the United States of America, in Congress assembled."

I next beg leave to refer your honors to No. 32 of the Federalist, by Hamilton, who says:

"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts, and whatever power might remain in them would be altogether dependent on the general will. But as the plan of the Convention aims only at a partial union or consolidation, _the State governments would clearly retain all the rights of sovereignty which they before had, and which were not by that act exclusively delegated to the United States_."

Also, to the Federalist, No. 39, by Madison, in which he says:

"The difference between a Federal and National Government, as it relates to the operation of the Government, is, by the adversaries of the plan of the Convention, supposed to consist in this, that in the former the powers operate upon the political bodies composing the Confederacy in their political capacities; in the latter, on the individual citizens composing the nation in their individual capacities. On trying the Constitution by this criterion, it falls under the national and not the federal character, though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. But the operation of the Government on the people in their individual capacities, in its ordinary and most essential proceedings, will, on the whole, in the sense of its opponents, designate it, in this relation, a National Government.

"But if the Government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it with regard to the extent of its powers. The idea of a National Government involves in it not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the National Legislature. Among communities united for political purposes, it is vested partly in the general and partly in the municipal Legislatures. In the former case all local authorities are subordinate to the supreme, and may be controlled, directed or abolished by it at pleasure. _In the latter the local or municipal authorities form_ DISTINCT AND INDEPENDENT PORTIONS OF THE SUPREMACY, _no more subject, within their respective spheres, to the general authority, than the general authority is subject to them within its own sphere. In this relation, then, the proposed Government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and_ INVIOLABLE _sovereignty over all other objects._ It is true that, in controversies relating to the boundary line between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the General Government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. _Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact_; and that it ought to be established under the general rather than the local Governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated."

I will refer, also, to the letter of Gov. Seward, written to Gov. Gilmore, of Virginia, October 24th, 1839, taken from the Assembly Journal, 63d Sess., 1840, p. 55. That distinguished public man says:

"You very justly observe, 'that neither the Government nor the citizens of any other country can rightfully interfere with the municipal regulations of any country in any way;' and in support of this position you introduce the following extract from Vattel's Law of Nations, 'that all have a right to be governed as they think proper, and that no State has the smallest right to interfere in the government of another. Of all the rights that belong to a nation, sovereignty is doubtless the most precious, and that which other nations ought the most scrupulously to respect if they would not do her an injury.'

"It might, perhaps, be inferred, from the earnestness with which these principles are pressed in your communication, that they have been controverted on my part. Permit me, therefore, to bring again before you the following distinct admissions: 'I do not question the constitutional right of a State to make such a penal code as it shall deem necessary or expedient; nor do I claim that citizens of other States shall be exempted from arrest, trial and punishment in the State adopting such code, however different its enactments may be from those existing in their own State.' Thus you will perceive that I have admitted the sovereignty of the several States upon which you so strenuously insist. To prevent, however, all possible misconstruction upon this subject, I beg leave to add that no person can maintain more firmly than I do the principle that the States are sovereign and independent in regard to all matters except those in relation to which sovereignty is expressly, or by necessary implication, transferred to the Federal Government by the Constitution of the United States. I have at least believed that my non-compliance with the requisition made upon me in the present case would be regarded as maintaining the equal sovereignty and independence of this State, and by necessary consequence, those of all the other States."

I contend, then, that the people of the several States, in forming the State governments, have surrendered to the latter supreme and sovereign jurisdiction over all questions affecting the State, or its citizens as a body politic, not included in the grant of power to the General Government by the Federal Constitution. This surrender necessarily includes the power and jurisdiction to determine, co-ordinately with the Federal Government, whether the Federal Executive Government is acting within or transgressing the limits of its legitimate authority in any case affecting the State as such, or its citizens as a body politic, when the question is not one of the validity or constitutionality of a law of the United States, operating directly upon individual citizens, and conformity to which is to be enforced or resisted by suit or defence in the Federal or State Courts, with the right of ultimate appeal, in either case, to the Supreme Court of the United States; but, on the contrary, brings into collision the Federal and State Executive Departments of the Government, in the exercise of powers which, from their very nature and the mode in which they are exerted, never can be presented for the determination of a Court.

And with regard to that proposition I would cite Vattel, Book I., chap. 1, sec. 2, upon the proposition that jurisdiction to determine such a mixed question of law and fact has been ceded equally to the State as to the Federal Government. Vattel says:

"It is evident that, by the very act of the civil or political association, each citizen subjects himself to the authority of the entire body in everything that relates to the common welfare. The authority of all over each member therefore essentially belongs to the body politic or State; but the exercise of that authority may be placed in different hands, according as the society may have ordained."

I refer, also, to the Federalist, No. 40, by Madison. He uses this language:

"Will it be said that the fundamental principles of the Confederation were not within the purview of the Convention, and ought not to have been varied? I ask, what are those principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. * * * Do they require that the powers of the Government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new Government will act on the States in their collective character. In some instances, also, those of the _existing_ Government act immediately on individuals. In cases of capture, of piracy, of the post-office, of coins, weights and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the cases of trial by Courts Martial, in the Army and Navy, by which death may be inflicted without the intervention of a Jury, or even of a Civil Magistrate,--in all these cases the _powers of the Confederation_ operate immediately on the persons and interests of individual citizens."

I would also refer your honors to the Report of the Committee of the General Assembly of Connecticut, on a call for the militia, by the General Government, in 1812. The Report reads:

"The people of this State were among the first to adopt that Constitution; they have been among the most prompt to satisfy all its lawful demands, and to give facility to its fair operations; they have enjoyed the benefits resulting from the Union of the States; they have loved, and still love and cherish that Union, and will deeply regret if any events shall occur to alienate their affection from it. They have a deep interest in its preservation, and are still disposed to yield a willing and prompt obedience to all the legitimate requirements of the Constitution of the United States.

"But it must not be forgotten that the State of Connecticut is a free, sovereign and independent State,--that the United States are a Confederacy of States,--that we are a confederated and not a consolidated Republic. The Governor of this State is under a high and solemn obligation 'to maintain the lawful rights and privileges thereof as a sovereign, free and independent State,' as he is 'to support the Constitution of the United States,' and the obligation to support the latter imposes an additional obligation to support the former. The building cannot stand if the pillars upon which it rests are impaired or destroyed. The same Constitution which delegates powers to the General Government, forbids the exercise of powers not delegated, and reserves those powers to the States respectively."

And that was "approved by both Houses," and the following resolution passed:

"_Resolved_, That the conduct of His Excellency, the Governor, in refusing to order the militia of this State into the service of the United States, on the requisition of the Secretary of War and Major-General Dearborn, meets with the entire approbation of this Assembly."

I would also refer to the second speech of Mr. Webster on Mr. Foot's resolution, in reply to Mr. Hayne, in the Senate of the United States, where he thus expresses himself:

"The States are unquestionably sovereign, so far as their sovereignty is not affected by this supreme law (the Constitution). * * * The General Government and the State governments derive their authority from the same source. Neither can, in relation to the other, be called primary; though one is definite and restricted, and the other general and residuary."

Also, to the case of _Luther_ vs. _Borden_, 7 Howard, 1--one of the Dorr rebellion cases. The Supreme Court of the United States there decided that the government of a State, by its Legislature, has the power to protect itself from destruction by armed rebellion by declaring martial law, and that the Legislature is the judge of the necessary exigency.

At this point the Court intimated that they would adjourn to the following day.

The District Attorney, Mr. E. Delafield Smith, stated that the case of the _United States_ vs. _William Smith_, one of the ship's company of the privateer Jefferson Davis, the trial of which had been proceeding in Philadelphia, had terminated in a verdict. That case involved the main questions, and also the question of jurisdiction involved here. Mr. Smith further stated that he had sent for a copy of the charge of Mr. Justice Grier in that case, and expected to receive it by telegraph, and he desired to reserve the right to refer to that charge as one of his authorities in this case.

_The Court_ assented.

Adjourned to Saturday, October 26th, at 11 A.M.

FOURTH DAY.

_Saturday, Oct. 26, 1861._

The Court met at 11 o'clock, when--

_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.