Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 2.
Frank Moore, Ed.

“ [136] wherein the crime shall have been committed,” &c.; and it is said that, as in a seceding State, the Judiciary of the United States is abolished by State power, and her people are with her in feeling, or by their allegiance bound to follow her, whether approving her course or not, there can be no such trial as the Constitution secures to the offender.

If this is so, and is ever to remain so, does it divest the United States of the power admitted to exist before secession, of arresting the offender and holding him until he can be tried. The clause assumes, as is always the case, arrest, accusation first and trial afterwards. The first can be made peaceably, or, if necessary, by force. Suppose it done. Is it illegal because the right to a speedy trial cannot be enjoyed? If not, why not? The fault is not with the United States, but with the State under whose usurpation the party has offended. She, by her act, has deprived him of the right. Is he to be discharged on that account? Novel doctrine! The State commits treason against the United States; all her citizens participate in it; the Courts of the United States are closed; the Judges exiled. The people are prohibited by force from performing their duties. The offender cannot, and for that reason only, be tried. The act is clearly a revolt, and yet it is said that that very treason and revolt in which the party accused is an actor, entitles him to impunity, because the very crime itself deprives him of the right to a speedy trial in the State where he perpetrated it.

To such of my professional friends as may be present, I put it to answer, if they think a ground like that, in the judgment of the esteemed and able Chief Justice of the United States, would support an application for a habeas corpus. Would any of you, regardful as I know you are of your reputation, venture to make it? And yet, Senators have ventured to make it. Truly has it been said, with what little wisdom is the world governed.

Further, what is true of treason is equally true of any other crime, and is applicable alike to States and to the United States. Nearly all, if not all, the Constitutions of the former contain a provision that the offenders be tried only in the vicinage where the offences are charged to have been committed. Are they to go unpunished — to be perpetrated with impunity — if, from local partiality or prejudice, a fair trial cannot be had? Gambling-houses, cock-fighting, racing may be fashionable amusements, though prohibited by law. The law is violated — the offence of constant occurrence — the whole country sanctions it, deem the prohibition tyrannical and put it at defiance. Has the State no right to enforce it? No, says the perpetrator — no, says our modern jurist. The right to punish is gone, because the power to punish, from the very prevalence and fashion of the crime, does not exist. A trial can only be constitutionally had in the county or district where the offence is committed, and there it cannot be had, as there all are offenders, and they will not sanction or suffer its punishment.

What do we know has occurred? The United States, by the very letter of the Constitution, are authorized to prohibit, by punishment, the African slave trade. They are also empowered, in order to preserve the peace of the country, and maintain its honor, to restrain our citizens from warring upon other nations with whom we are at peace. Laws for both purposes have long existed, and their Constitutionality never questioned. The trade has, nevertheless, been carried on, and hostile enterprises set on foot. The parties have been arrested.

In some cases indictments could not be obtained, because an impartial, honest Grand Jury could not be found. In others such a petit jury, for the same cause, could not be had to convict. In others the offender has been rescued. The power to punish, therefore, in these instances, did not exist. The citizens of the only constitutional place for trial and punishment practically set at naught the laws. They acknowledged a higher law. They thought the slave trade moral — the breach of the neutrality acts, patriotism. The one extended the area of a favored institution, and in time would Christianize its victims — the other extended the area of freedom, and in time would make liberty universal.

But the acts, notwithstanding, were crimes, and should be punished. No, say our modern constitutional expounders. No, say Senators. They are not crimes, whatever may be the law on the statute-book, because there is no potential legal mode to try and punish them, the mere machinery of the law, in that particular, is defective, the whole vicinage being tainted, and participating or sympathizing with the offence and offender, impunity is secured, and impunity converts crime into virtue.

As well might the thief or murderer who so cunningly steals or kills as to escape detection, rely upon his cunning as a moral and legal justification. The whole theory shocks common sense. It is not punishment which makes the crime. It is the wrong, the illegality of its perpetration. The question. of punishment arises after the crime is committed, and exists wholly irrespective of subsequent detection and punishment. If, then, secession is a crime — is treason against the United States--it will remain so forever, whether the latter succeeds in dealing with it as the law requires or not.

Again, it is maintained that the right to secede exists, first, because it is reserved; secondly, because it is not prohibited.

It is said to be reserved. For this the ninth and tenth articles of the Constitution are relied upon.

The first is evidently designed to exclude the conclusion that the enumeration in the instrument of certain rights to the people, the citizens, as such, in their individual character, is to be held “to deny or disparage others retained by the people.” It has nothing to do with State sovereignty or power at all.