After citing provisions from the laws of 1790, 1820, 1825, 1846, and 1847, as to what constitutes the general crime, with the different degrees of penalty, the judge remarks that these enactments were founded upon the clause in the
Constitution which gives Congress the power to define and punish piracy.
But the constitutional power to regulate commerce also affords a basis for additional penal enactments, covering all possible aggressions and depredations upon our commerce.
The judge then lays down the following important principles, the bearing of which will be sufficiently evident in the present crisis:--
The statutes, being enacted pursuant to the
Constitution, are of paramount authority, and cannot be invalidated or impaired by the action of any State or States; and every law, ordinance, and constitution made by them for that purpose, whatever its name or form, is wholly nugatory and can afford no legal protection to those who act under it. But suppose that a number of States undertake, by Revolution, to throw off the
Government of the
United States, and erect themselves into an independent nation, and assume in that character to issue commissions authorizing the capture of vessels of the
United States, will such commissions afford protection to those acting under them against the penal laws of the
United States?
Cases have heretofore arisen where a portion of a foreign empire — a colony — has undertaken to throw off the dominion of the mother country, and assumed the attitude and claimed the rights of an independent nation, and in such cases it has been held that the relation which the
United States should hold to those who thus attempt and claim to institute a new government, is a political rather than a legal question; that, if those departments of our Government which have a right to give the law, and which regulate our foreign intercourse and determine the relation in which we shall stand to other nations, recognize such new and self-constituted government as having the rights of a belligerent in a war between them and their former rulers, and the
United States hold a neutral position in such war, then the judiciary, following the other departments, will, to the same extent, recognize the new nation.
But if the legislative and executive departments of the
Government utterly refuse to recognize such new government, or to acknowledge it as having any belligerent or national rights, and, instead of taking a neutral attitude, endeavor by force to suppress depredations on commerce by such assumed government, as violating the rights and infringing the laws of the
United States, then the judiciary will hold that such depredations are not to be considered as belligerent, and entitled to the immunities of lawful war, but as robbery or other lawless depredations, subject to the penalties denounced by our law
[
256]
against such offences.
The judiciary certainly cannot adopt a more indulgent rule towards those who are in open rebellion against the authority of the
United States, or towards aliens co-operating with, and acting under, the assumed authority of such rebels.
While the other departments of the
Government and the nation refuse to regard any State or association of States as having the rights of a belligerent, or as carrying on legitimate war, and are exerting not only moral but physical force against them as rebels and lawless aggressors upon the
United States and its citizens, the courts also must so regard them, and cannot admit that any legislation or assumption of power by such State or States can authorize acts in violation of the laws of the
United States, or change the character of offences under them.
There is another view.
Mere rebellion absolves no man from his allegiance.
Citizens of the
United States, therefore, may not only be subject to the penalties of treason, but if they commit hostilities upon the commerce of the
United States, under a commission from any foreign nation, even the oldest and best established, such as
England or
France for example, they may be dealt with as pirates by the express enactments in the ninth section of the statute of 1790, which has already been referred to. And aliens who are subjects or citizens of any foreign State with whom we have a treaty, such as is described in the statute of 1847, chapter 51, which has already been quoted; if, in violation of such treaty, they make war upon the
United States, or cruise against our vessels or property under a commission from any foreign government, however long acknowledged, may, by the clear provisions of that statute, be dealt with as pirates.
If aliens, subjects of a nation with whom we have no such treaty, commit acts of hostility upon our commerce, under the alleged authority or commission of a new and self-created government claiming to be independent, it may be material to inquire whether such government is to be regarded as having the immunities of a belligerent, or whether such aliens may be treated as robbers on the seas, and this inquiry will be governed by the principles which I have already stated.--
Boston Journal, May 17.
