Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York

by A. F. Warburton

I wish very briefly to refer your honors to a few authorities, which, I hold, sustain these propositions. I say, in the first place, that this right bears no analogy whatever to the right, once claimed and most successfully refuted, of the inhabitants of a State, in Convention, to decide by ordinance upon the unconstitutionally of a law of the Union, and to prevent by force its operation within the limits of the State, in a case legitimately falling within the cognizance of the Courts. The claim to collect duties under an Act of Congress alleged to be unconstitutional was strictly an instance of this latter class. The citizen from whom the duties were claimed could simply refuse to pay, and thereby refer the question of constitutionality of the law to the judicial tribunals to which it properly belonged, and which must necessarily pass upon the question before the duties could be collected. On the other hand, the claim to hold or retake forts or other public places within the limits of a State, as property of the United States, is one against which, if unauthorized, the State could not by possibility defend itself through the agency of the Courts.

Now, if your honors please, I have stated most distinctly, and admitted most fully, that, in whatever cases the judicial power of the United States extends to, it is supreme. That is to say, if a collision takes place in a suit in a State Court between the Federal and State laws, and the decision of the State Court is against the right, privilege, or exemption, as it is called in the judiciary Act, claimed under the authority of the Union, the Supreme Court of the United States can redress the error. But I am now speaking of that class of cases where the judiciary have nothing whatever to do, and in which, I contend, the Federal and State authorities are each supreme and sovereign, within the limits of their respective power, and neither has any right or authority beyond the lines which bound their respective jurisdiction. And, if your honors please, I refer to the Inaugural Address of Mr. Lincoln, not only for the proposition that the judicial authority has nothing to do whatever in a case such as that I am now supposing, but that, even in cases where the judiciary is competent to act, its decisions do not form precedents, do not form rules for the government of the co-ordinate departments of the Union, in future cases of State policy, and that the executive and the legislative departments are still left at liberty to act as if no decision had been made. I do not mean to be understood as acquiescing in that claim; I consider it as a doctrine infinitely more dangerous and destructive than the doctrine of constitutional secession; but it comes to us as the claim set up on the part of the President; and if that is at all correct, there is an end of all pretence that the judiciary is competent to afford any relief or protection in the other class of cases referred to.

He says:

"I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decision must be binding in any case upon the parties to a suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government; and while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it being limited to that particular case, with the chances that it may be overruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that, if the policy of the Government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made in ordinary litigations between parties in personal actions, the people will have ceased to be their own masters, having to that extent practically resigned the Government into the hands of that eminent tribunal. Nor is there, in this view, any assault upon the Court or the Judges. It is a duty from which they may not shrink, to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."

I have not the document at this moment; but your honors will probably bear in mind that the Executive also lately consulted the law-officer of the Government upon the question of suspending the privilege of habeas corpus, and I well remember the clause in the opinion which was delivered by that eminent legal gentleman and high officer of the Government on that occasion, and which was afterwards communicated by the President to Congress as the basis of his action. In that opinion the present learned Attorney-General used this language: "To say that the departments of our Government are co-ordinate, is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment. It binds only the parties to the case decided." And your honors will recollect that, acting upon that enunciation of the law of the land and of the construction of the Constitution, although he admitted that the Supreme Court of the United States had decided that the privilege of habeas corpus could not be suspended by the Executive, without the interposition of Congress, the legal adviser of the Government held, at the same time, that that decision of the Supreme Court was not binding upon the Executive.

Now, for the purpose of showing what I mean by the right of resistance reserved to the people by the law of nature, which, as I say, is delegated by them to these two sovereigns, for the purpose that each may maintain its own authority and prevent encroachment by the other, I beg to refer your honors to Rutherforth's Institutes of Natural Law, vol. 1, page 391, commencing with section 10. And as a proof than I broach no novel or revolutionary doctrine, your honors will bear in mind that these Institutes of Natural Law were a course of lectures delivered in one of the great seminaries of learning of England, and their doctrines thought fit and proper to be instilled into the minds of the youth of that Kingdom, the loyalty of whose people to their Government has become proverbial among all the nations of the world.

The author says:

"It is a question of some importance, and has been thought a question not easily to be determined, whether the members of a civil society have, upon any event, or in any circumstances whatsoever, a right to resist their governors, or rather the persons who are invested with the civil power of that society."

Then he states several cases in which the civil governors, as he calls them, lose their power over their subjects, and continues:

"Fourthly, Though the governors of a society should be invested by the constitution with all civil power in the highest degree and to the greatest extent that the nature of a civil power will admit of, yet this does not imply that the people are in a state of perfect subjection. Civil power is, in its own nature, a limited power; as it arose at first from social union, so it is limited by the ends and purposes of such union, whether it is exercised, as it is in democracies, by the body of the people, or, as it is in monarchies, by one single person. But if the power of a Monarch, when he is considered as a civil governor, is thus limited by the ends of social union, whatever obedience and submission the people may owe him whilst he keeps within these limits, he has no power at all, and consequently the people owe him no subjection, when he goes beyond them.