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

"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.