Part 21

"_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)."