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 YorkWarburton, A. F. (Adolphus Frederick)
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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
Warburton, A. F. (Adolphus Frederick)
Piracy -- United States; Privateering -- United States; United States -- History -- Civil War, 1861-1865
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.
So also with regard to the prohibition against entering into any
treaty, alliance, or confederation, which is coupled with the
prohibition against granting letters of marque in the first paragraph
of the tenth section. That that prohibition is restricted to compacts
or agreements with foreign powers, is manifest from the whole structure
of the section.
Public-domain text, read in full here on John Shaqi.
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