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United States v. Cathcart.

ment has been greatly extended, and the domain of political metaphysics has been fully explored in its progress. I have listened patiently to the statement of the views of counsel, though not without some surprise that they should have been urged with such apparent gravity and earnestness, before this court, on a purely legal question, with the full knowledge that they were in direct conflict with the solemn and well-considered adjudications of the Supreme Court of the United States, and the views of numerous elementary writers of the highest reputation as jurists. I am at a loss to comprehend on what grounds counsel could have supposed this court would sustain a theory so entirely at variance, not only with the decisive authorities to which I shall refer, but with the uniform action of every department of the general government from its organization to the presént day. It is obvious that the counsel throughout his argument has addressed himself to the question, what, in his judgment, the structure of our government should have been, and not what it is. It seemed, therefore, to the court, that however appropriate the peculiar views of counsel may have been, if urged in a popular assembly to rectify a supposed erroneous public sentiment, or in a convention to amend the constitution, or reconstruct the government, they were wholly ont of place on the question, whether the averments and structure of the inditcment in this sufficient in law to put the defendant on trial before a traverse jury. The manner of counsel was, however, unexceptionably courteous, and his views were presented with seeming earnestness and sincerity. It is due, therefore, to the occasion, and to the position I occupy, that I should state some of the reasons why I can not assent to the principles he has urged upon the attention of the court. And, in the first place, I will refer to some of the adjudicated cases in which these principles have been discussed and settled by men whose intellectual power and profound knowl. edge of the structure of our government, entitle them to the highest measure of respect and veneration. And I may

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United States v. Cathcart.

remark bere, that in so far as these principles are embodied and propounded in the judicial decisions of the Supreme Court, they are positively authoritative on this court, as a subordinate court of the United States.

In the case of Martin v. Hunter's Lessee, 1 Wheaton, 304, (3 Peters’ Cond. R. 575), the Supreme Court says: “The constitution of the United States was ordained and established, not by the States in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States. There can be no doubt that it was competent to the people to invest the general government with all the powers, which they might deem proper and necessary, to extend or restrain those powers according to their own good pleasure, and to give them paramount and supreme authority.The opinion of the court in this case was delivered by Justice Story, and was concurred in by the whole court, including Chief Justice Marshall.

In McCulloch v. The State of Maryland, 4 Wheaton, 316, *Chief Justice Marshall delivering the opinion of the court, it is decided “that the government of the Union is a government of the people; it emanates from them; its powers

! are granted by them, and are to be exercised directly on them, and for their benefit.” Again : “ The government of the Union, though limited in its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the constitution, form the supreme law of the land.

Judge Story, in discussing the question whether the constitution of the United States is a compact between the several States, remarks that “there is nowhere found upon the face of the constitution any clause intimating it to be a compact, or in any wise providing for its interpretation as such. On the contrary, the preamble emphatically speaks of it as a solemn ordinance and establishment of government. The language is: “We, the people of the United States, do ordain and establish this Constitution for the United States of America.Com. on the Constitution (Abr. ed.), 117. And again, page 119, the learned author says: “But

United States v. Cathcart.

that which would seem conclusive on the subject is the very language of the constitution itself. This constitution, says the sixth article, 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 he adds: “If it is the supreme law, how can the people of any State, either by any form of its own constitution or laws, or other proceedings, repeal, abrogate, or suspend it?” And again he says: “This of itself imports legal obligation, permanence and uncontrollability by any but the authorities authorized to alter or abolish it.” And again, on this subject, the learned writer says, page 684: “It would be a perfect solecism to affirm that a national government should exist with certain powers, and yet in the exercise of those powers should not be supreme."

I will add to these references a brief notice of the case of Ableman v. Booth, 21 Howard, 506, decided by the Supreme Court of the United States in 1858, which sustains fully the general doctrines affirmed by the prior decisions of that court. I make this reference with the more satisfaction because the opinion was written and delivered by Chief Justice Taney, a judge eminent for his profound legal learning, and who has never been charged with extreme liberality in construing the constitution of the United States, and defining the powers of the general government. In that case, a judge of a State court in Wisconsin had discharged a party on habeas corpus who was in custody under the authority of the United States. The Supreme Court of the State sustained the action of the lower judge; and the case was removed to the Supreme Court of the United States by writ of error, in accordance with section 25 of the judiciary act of 1789. I shall give but brief quotations from the opinion of the court, indicating their views on the subject under consideration. On page 516, the court say: “Although the State of Wisconsin is sovereign within its territorial limits to a certain extent, yet that

United States v. Cathcart.

sovereignty is limited and restricted by the constitution of the United States. And the powers of the general government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge or a State court, as if the line of division was traced by landmarks and monuments visible to the eye.” Again, on page 517, the court say: “The constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home; for if this object could be obtained there would be little danger from abroad; and, to accomplish this purpose, it was felt by the statesmen who framed the constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the general government; and that in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State, or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the government was established.” And the court further say: “The language of the constitution by which this power is granted is too plain to admit of doubt, or to need comment. It declares that this constitution, and the laws which shall be passed 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.'” On page 524, the court further say: “Nor is there anything in the supremacy of the general government, or the jurisdiction of its tribunals, to awaken the jealousy or offend the natural and just pride of state sovereignty.

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United States v. Cathcart.

Neither this government nor the powers of which we are speaking were forced upon the States. The constitution of the United States, with all the powers conferred on it by the general government, and surrendered by the States, was the voluntary act of the people of the several States, deliberately done, for their own protection and safety against injustice from one another.” And they add, page 525: “Now it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among the first and highest duties as a citizen, because free government can not exist without it. Nor can it be inconsistent with the dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a State of this Union. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the constitution as it is, in all its provisions, until they shall be altered in the manner which the constitution itself prescribes.”

A still more recent decision of the Supreme Court, in the prize cases, as they are called, 1 Black, 635, strongly affirms the doctrines previously declared by that court. In the very able and lucid opinion of Mr. Justice Grier, giving the views of the court, page 673, he says: “Under the very peculiar constitution of this government, although the citizens owe supreme allegiance to the federal government, they owe also a qualified allegiance to the State in which they are domiciled.”

And it may be proper here to remark that the principles enunciated in the case just referred to, are pertinent to the questions before this court on this demurrer in another aspect. The argument of the counsel for the demurrant is, that a citizen of a State can not be guilty of treason against the United States by adhering to, or giving aid and comfort to those now in rebellion against the government, because it is a mere insurrection or civil war, waged by the seceding

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