If the contents of The 1619 Project are getting under your skin, here's a new audiobook for you.
Nothing else need be said, book speaks for itself.
Book summary: Collects the speeches, writings, public statements and legislative acts of the Founding Fathers and Framers of the United States against slavery. (Summary by progressingamerica)
The military service of confederates could not constitute treason. Lincoln declared a blockade and the U.S. Supreme Court held that proclamation to be the start of the war. A blockade is an international act whose domestic counter-part is a closing of the ports. The international act of a blockade served to recognize the confederacy as a lawful bellgerent power. Thereafter, its servicemen taken prisoner were entitled to prisoner-of-war status. They were lawful combatants and their warlike acts were lawful.
The biggest fear was secession would be held lawful.
In 1975, the Senate vote restoring Lee's citizenship rights was unanimous. The House vote was 407-10.
A general amnesty was granted to all after the war conditioned on taking an oath. When the citizenship issue came up in 1975, black Congressman John Conyers had staff search the National Archives for what was derisively called the "missing" oath. Unexpectedly, two archivists told Conyers' staff that the oath had been on public display since the 1930s, had never been lost, and was first stored with other amnesty documents at the State Department.
Lee was indicted in Virginia, June 7, 1865. The reason for not prosecuting Lee was similar to that of Jefferson Davis, and all others. The risk of losing was too great. They never proceeded to trial because the teams of lawyers they formed all advised that what had been won on the battlefield could be lost in court.
Richard H. Dana, Jr. was one of the top lawyers for the government.
RICHARD HENRY DANA BRIEF Boston, August 24, 1868
The Honorable
William M. Evarts,
Attorney General
Sir,
While preparing with yourself, before you assumed your present post, to perform the honorable duty the President had assigned to us, of conducting the trial of Jefferson Davis, you know how much my mind was moved, from the first, by doubts of the expediency of trying him at all. The reasons which prevented my presenting those doubts no longer exist, and they have so ripened into conviction that I feel it my duty to lay them before you in form as you now hold a post of official responsibility for the proceeding.
After the most serious reflection, I cannot see any good reason why the Government should make a question of whether the late civil war was treason and whether Jefferson Davis took any part in it, and submit those questions to the decision of a petit jury of the vicinage of Richmond at nisi prius .
As the Constitution in terms settles the fact that our republic is a state against which treason may be committed, the only constitutional question attending the late war was whether a levying of war against the United States which would otherwise be treason is relieved of that character by the fact that it took the form of secession from the Union by state authority. In other words, the legal issue was, whether secession by a state is a constitutional right, making an act legal and obligatory upon the nation which would otherwise have been treason.
This issue I suppose to have been settled by the action of every department of the Government, by the action of the people itself, and by those events which are definitive in the affairs of men.
The Supreme Court in the Prize Courts (2 Black’s Ref) held, by happily a unanimous opinion that acts of the States, whether secession ordinances, or in whatever form cast, could not be brought into the cases, as justifications for the war, and had no legal effect on the character of the war, or on the political status of territory or persons or property, and that the line of enemy’s territory was a question fact depending upon the line of bayonets of an actual war. The rule in the Prize Courts has been steadily followed in the Supreme Court since, and in the Circuit Courts, without an intimation of a doubt. That the lawmaking and executive departments have treated this secession and war as treason is matter of history, as well as is the action of the people in the highest sanction of war. It cannot be doubted that the Circuit Court at the trial will instruct the jury in conformity with these decisions, that the late attempt to establish and sustain by war by independent empire within the United States was treason. The only question of fact submitted to the jury will be whether Jefferson Davis took part in the war. As it is one of the great facts of history that he was its head, civil and military, why should we desire to make a question of it and refer its decision to a jury, with powers to find in the negative or affirmative or to disagree? It is not an appropriate question for the decision of a jury, certainly it is not a fact which a Government should, without great cause, give a jury a chance to ignore.
We know that these indictments are to be tried in what was for five years enemy’s territory, which is not yet restored to the exercise of all its political functions, and where the fires are not extinct. We know that it only requires one discontent juror to defeat the Government and give Jefferson Davis and his favorers a triumph. Now, is not such a result one which we must include in our calculation of possibilities? Whatever modes may be legally adopted to draw a jury, or to purge it, and whatever the influence of the court or of counsel, we know that a favorer of treason may get upon the jury. But that is not necessary. A fear of personal violence or social ostracism may be enough to induce one man to withhold his ascent from the verdict, especially as he need not come forward personally, nor give a reason, even in the jury room.
The possible result would be most humiliating to the Government and people of this country, and none the less so from the fact that it would be absurd. The Government would be stopped in the judicial course because it could neither assume nor judicially determine that Jefferson Davis took part in the late civil war. Such a result would also bring into doubt the adequacy of our penal system to deal with such cases as this.
If it were important to secure a verdict as a means of punishing the defendant, the question would present itself differently. But it would be beneath the dignity of the Government and of the issue, to inflict upon him a minor punishment, and, as to a sentence of death, I am sure that, after this lapse of time, and after all that has occurred in the interval, the people of the United States would not desire to see it enforced.
In fine, after the fullest consideration, it seems to me that, by pursuing the trial, the Government can get only a reaffirmation by a Circuit Court at nici prius of a rule of public law settled for this country in every way in which such a matter can be settled, only giving to a jury drawn form the region of the rebellion a chance to disregard the law when announced. It gives that jury a like opportunity to ignore the fact that Jefferson Davis took any part in the late civil war. And one man upon the jury can secure the results. The risk of such absurd and discreditable issues of a great state trial, are assumed for the sake of a verdict which, if obtained, will settle nothing in law or natural practice not now settled, and nothing in fact not now history, while no judgment rendered thereon do we think will be ever executed.
Besides these reasons, and perhaps because of them, I think the public interest in the trial has ceased among the most earnest and loyal citizens.
If your views and those of the President should be in favor of proceeding with the trial, I am confident that I can do my duty as counsel to the utmost of my ability and with all zeal. For my doubts are not what the verdict ought to be. On the contrary, I should feel all the more strongly, if the trial is begun, the importance of victory to the Government, and the necessity of putting forth all power and using all lawful means to secure it. Still, I feel it my duty to say that if the President should judge otherwise, my position in the case is at his disposal.
Very respectfully
Your ob’t. ser’t.
(signed) Richard H. Dana, Jr.
In November 1868, Dana's letter was provided to the President and the Cabinet. AG Evarts recommended a new Amnesty to include all those under indictment. The President and Cabinet agreed, and that's what happened. They made the whole thing disappear just before the Circuit Court was to reconvene.
No. Read the the article itself. Did he have two witnessses? YEAH! THE WHOLE DAMN NATION!. Good God what do you use for brains?
Texas v. White, Chase, C.J., Opinion of the Court
The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
What this overlooks, of course, is that the AoC permitted no change to its provisions except by unanimous consent of the member states. When the Constitution was put into effect with the consent of 9 states, a more perfect union consisting of 9 states was not made. When Washington was inaugurated, a more perfect union consisting of 11 states was not made. The AoC was dissolved by its two remaining members, RI and NC, so that was no longer a union at all. When Washington was inaugurated, RI and NC were not members of the new Union pursuant to its terms. Neither was VT. As for the arbitrary number 9, that would not be enough to ratify an amendment pursuant to the provisions of the Constitution. It was certainly not the unanimous consent necessary to effect any change to the AoC.
Whereas the AoC self-declared that it was perpetual, the Constitution omitted that. That does not really matter. A perpetual union is not one which cannot be left, but one with no set renewal or termination date. It does not mean it can't be changed or terminated, but that it has no provision for self-extinguishment unless renewed.
Looking at the ratifications of the Constitution, various states included conditions with their ratification, including a right to leave the union at will. Ratification of the Constitution was obtained by accepting the part that ratified and disregarding the part with any condition. The ratification counted, but the condition did not. A requisite unconditional ratification would normally mean that a conditional ratification did not count. The process of ratification was a bit messy, rather like the 14th Amendment.
Texas v. White was a concocted case of no particular importance other than it gave the Court a manufactured opportunity to declare the recent secessions unlawful without tackling a case and a defense directly on point. The case itself involved ownership of certain bonds. The legal fees of the attorneys greatly exceeded the value of the bonds at issue.
The majority opinion does express the official interpretation of the law. Only after the fact did the people learn what they had ratified—gay marriage, abortion, and the preemption of all criminal cases for insurrection or rebellion. In Texas v. White, it seems a state may be both in the union and out of the union, while states that have not ratified the Constitution may be in the union made up of states that have ratified.
The majority opinion, of course, expresses the Opinion of the Court. However, the dissenting opinions may be instructive in understanding what may happen when the Court entertains a suit for a political purpose. Therein the Court may find the Bill of Rights has penumbras formed by emanations from those guarantees that help give them life and substance. When the Court waxes eloquent, a pantsload is usually about to drop. A judicial pantsload is an authoritative pantsload.
Mr. Justice GRIER, dissenting.
I regret that I am compelled to dissent from the opinion of the majority of the court on all the points raised and decided in this case. The first question in order is the jurisdiction of the court to entertain this bill in behalf of the State of Texas. The original jurisdiction of this court can be invoked only by one of the United States. The Territories have no such right conferred on them by the Constitution, nor have the Indian tribes who are under the protection of the military authorities of the government.
Is Texas one of these United States? Or was she such at the time this bill was filed, or since? This is to be decided as a political fact, not as a legal fiction. This court is bound to know and notice the public history of the nation.
If I regard the truth of history for the last eight years, I cannot discover the State of Texas as one of these United States. I do not think it necessary to notice any of the very astute arguments which have been advanced by the learned counsel in this case, to find the definition of a State, when we have the subject treated in a clear and common sense manner by Chief Justice Marshall, in the case of Hepburn & Dundass v. Ellzey. As the case is short, I hope to be excused for a full report of it, as stated and decided by the court. He says:
"The question is, whether the plaintiffs, as residents of the District of Columbia, can maintain an action in the Circuit Court of the United States for the District of Virginia. This depends on the act of Congress describing the jurisdiction of that court. The act gives jurisdiction to the Circuit Courts in cases between a citizen of the State in which the suit is brought, and a citizen of another State. To support the jurisdiction in this case, it must appear that Columbia is a State. On the part of the plaintiff, it has been urged that Columbia is a distinct political society, and is, therefore, a 'State' according to the [74 U.S. 700, 738] definition of writers on general law. This is true; but as the act of Congress obviously uses the word 'State' in reference to that term as used in the Constitution, it becomes necessary to inquire whether Columbia is a State in the sense of that instrument. The result of that examination is a conviction that the members of the American Confederacy only are the States contemplated in the Constitution. The House of Representatives is to be composed of members chosen by the people of the several States, and each State shall have at least one representative. 'The Senate of the United States shall be composed of two senators from each State.' Each State shall appoint, for the election of the executive, a number of electors equal to its whole number of senators and representatives. These clauses show that the word 'State' is used in the Constitution as designating a member of the Union, and excludes from the term the signification attached to it by writers on the law of nations."
Now we have here a clear and well-defined test by which we may arrive at a conclusion with regard to the questions of fact now to be decided.
Is Texas a State, now represented by members chosen by the people of that State and received on the floor of Congress? Has she two senators to represent her as a State in the Senate of the United States? Has her voice been heard in the late election of President? Is she not now held and governed as a conquered province by military force? The act of Congress of March 2d, 1867, declares Texas to be a "rebel State," and provides for its government until a legal and republican State government could be legally established. It constituted Louisiana and Texas the fifth military district, and made it subject, not to the civil authority, but to the "military authorities of the United States."
It is true that no organized rebellion now exists there, and the courts of the United States now exercise jurisdiction over the people of that province. But this is no test of the State's being in the Union; Dacotah is no State, and yet the courts of the United States administer justice there as they do in Texas. The Indian tribes, who are governed by military force, cannot claim to be States of the Union. Wherein does the condition of Texas differ from theirs?
Now, by assuming or admitting as a fact the present status of Texas as a State not in the Union politically, I beg leave to protest against any charge of inconsistency as to judicial opinions heretofore expressed as a member of this court, or silently assented to. I do not consider myself bound to express any opinion judicially as to the constitutional right of Texas to exercise the rights and privileges of a State of this Union, or the power of Congress to govern her as a conquered province, to subject her to military domination, and keep her in pupilage. I can only submit to the fact as decided by the political position of the government; and I am not disposed to join in any essay to prove Texas to be a State of the Union, when Congress have decided that she is not. It is a question of fact, I repeat, and of fact only. Politically, Texas is not a State in this Union. Whether rightfully out of it or not is a question not before the court.
But conceding now the fact to be as judicially assumed by my brethren, the next question is, whether she has a right to repudiate her contracts? Before proceeding to answer this question, we must notice a fact in this case that was forgotten in the argument. I mean that the United States are no party to this suit, and refusing to pay the bonds because the money paid would be used to advance the interests of the rebellion. It is a matter of utter insignificance to the government of the United States to whom she makes the payment of these bonds. They are payable to the bearer. The government is not bound to inquire into the bona fides of the holder, nor whether the State of Texas has parted with the bonds wisely or foolishly. And although by the Reconstruction Acts she is required to repudiate all debts contracted for the purposes of the rebellion, this does not annul all acts of the State government during the rebellion, or contracts for other purposes, nor authorize the State to repudiate them.
Now, whether we assume the State of Texas to be judicially in the Union (though actually out of it) or not, it will not alter the case. The contest now is between the State of Texas and her own citizens. She seeks to annul a contract with the respondents, based on the allegation that there was no authority in Texas competent to enter into an agreement during the rebellion. Having relied upon one fiction, namely, that she is a State in the Union, she now relies upon a second one, which she wishes this court to adopt, that she was not a State at all during the five years that she was in rebellion. She now sets up the plea of insanity, and asks the court to treat all her acts made during the disease as void.
We have had some very astute logic to prove that judicially she was not a State at all, although governed by her own legislature and executive as 'a distinct political body.'
The ordinance of secession was adopted by the convention on the 18th of February, 1861; submitted to a vote of the people, and ratified by an overwhelming majority. I admit that this was a very ill-advised measure. Still it was the sovereign act of a sovereign State, and the verdict on the trial of this question, "by battle," as to her right to secede, has been against her. But that verdict did not settle any question not involved in the case. It did not settle the question of her right to plead insanity and set aside all her contracts, made during the pending of the trial, with her own citizens, for food, clothing, or medicines. The same "organized political body," exercising the sovereign power of the State, which required the indorsement of these bonds by the governor, also passed the laws authorizing the disposal of them without such indorsement. She cannot, like the chameleon, assume the color of the object to which she adheres, and ask this court to involve itself in the contradictory positions, that she is a State in the Union and was never out of it, and yet not a State at all for four years, during which she acted and claims to be 'an organized political body,' exercising all the powers and functions of an independent sovereign State. Whether a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their contract, she can have her legal remedy for the breach of it in her own courts.
But the case of Hardenberg differs from that of the other defendants. He purchased the bonds in open market, bona fide, and for a full consideration. Now, it is to be observed that these bonds are payable to bearer, and that this court is appealed to as a court of equity. The argument to justify a decree in favor of the commonwealth of Texas as against Hardenberg, is simply this: these bonds, though payable to bearer, are redeemable fourteen years from date. The government has exercised her privilege of paying the interest for a term without redeeming the principal, which gives an additional value to the bonds. Ergo, the bonds are dishonored. Ergo, the former owner has a right to resume the possession of them, and reclaim them from a bona fide owner by a decree of a court of equity.
This is the legal argument, when put in the form of a logical sorites, by which Texas invokes our aid to assist her in the perpetration of this great wrong.
A court of chancery is said to be a court of conscience; and however astute may be the argument introduced to defend this decree, I can only say that neither my reason nor my conscience can give assent to it.
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Mr. Justice SWAYNE: (dissenting)
I concur with my brother Grier as to the incapacity of the State of Texas, in her present condition, to maintain an original suit in this court. The question, in my judgment, is one in relation to which this court is bound by the action of the legislative department of the government. Upon the merits of the case, I agree with the majority of my brethren.
I am authorized to say that my brother MILLER unites with me in these views.
THE DECREE.
The decree overruled the objection interposed by way of plea, in the answer of defendants to the authority of the solicitors of the complainant to institute this suit, and to the right of Texas, as one of the States of the National Union, to bring a bill in this court.
It declared the contract of 12th January, 1865, between the Military Board and White and Chiles void, and enjoined White and Chiles from asserting any claim under it, and decreed that the complainant was entitled to receive the bonds and coupons mentioned in the contract, as having been transferred or sold to White and Chiles, which, at the several times of service of process, in this suit, were in the possession, or under the control of the defendants respectively, and any proceeds thereof which had come into such possession or control, with notice of the equity of the complainant.
It enjoined White, Chiles, Hardenberg, Birch, Murray, Jr., and other defendants, from setting up any claim to any of the bonds and coupons attached, described in the first article of said contract, and that the complainant was entitled to restitution of such of the bonds and coupons and proceeds as had come into the possession or control of the defendants respectively.
And the court, proceeding to determine for which and how many bonds the defendants respectively were accountable to make restitution of, or make good the proceeds of, decreed that Birch and Murray were so accountable for eight, numbered in a way stated in the decree, with coupons attached; and one Stewart (a defendant mentioned in the note at page 702), accountable for four others, of which the numbers were given, with coupons; decreed that Birch and Murray, as also Stewart, should deliver to the complainant the bonds for which they were thus made accountable, with the coupons, and execute all necessary transfers and instruments, and that payment of those bonds, or any of them, by the Secretary of the Treasury, to the complainant, should be an acquittance of Birch and Murray, and of Stewart, to that extent, and that for such payment this decree should be sufficient warrant to the secretary.
And, it appearing—the decree went on to say—upon the pleadings and proofs, that before the filing of the bill, Birch and Murray had received and collected from the United States the full amount of four other bonds, numbered, &c., and that Hardenberg, before the commencement of the suit, had deposited thirty-four bonds, numbered, &c., in the Treasury Department for redemption, of which bonds he claimed to have received payment from the Secretary of the Treasury before the service of process upon him in this suit, in respect to which payment and the effect thereof the counsel for the said Birch and Murray, and for the said Hardenberg respectively, desired to be heard, it was ordered that time for such hearing should be given to the said parties.
Both the complainant and the defendants had liberty to apply for further directions in respect to the execution of the decree.
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https://tile.loc.gov/storage-services/service/ll/usrep/usrep006/usrep006445/usrep006445.pdf
U.S. Supreme Court
Hepburn and Dundas v. Ellzey, 6 U.S. (2 Cranch) 445 (1805)
February, 1805 Hepburn and Dundas v. Ellzey.*
Hepburn and Dundas v. Ellzey, 6 U.S. (2 Cranch) 445 (1805)
ON CERTIFICATE OF DIVISION OF OPINION OF THE JUDGES OF THE CIRCUIT COURT OF THE UNITED STATES OF THE DISTRICT OF VIRGINIA
This was a question certified from the circuit court for the fifth circuit, holden in the Virginia district, on which the opinions of the judges of that court were opposed. (See Laws of U. S. vol. 6, p. 89, sec. 6.)
"The certificate sets forth that "in this cause it occurred as a question whether Hepburn and Dundas, the plaintiffs in this cause, who are citizens and residents of the District of Columbia, and are so stated in the pleadings, can maintain an action in this Court against the defendant, who is a citizen and inhabitant of the Commonwealth of Virginia, and is also stated so to be in the pleadings, or whether for want of jurisdiction the said suit ought not to be dismissed."
E.J. Lee, for plaintiffs. This question arises under the 2d sec. of the 3d article of the constitution of the United States, which defines the jurisdiction of the courts of the United States.
The particular words of the section which apply to the question are those declaring that the jurisdiction of the courts of the United States shall extend "to controversies "between citizens of different states."
If such words are used in the constitution as according to their literal meaning, will give jurisdiction to the court, it is all that is necessary to be established.
It is essential, in determining this question, to ascertain the import of the term "states," which in itself is a vague expression. It will sometimes mean an extent of country within certain limits, within which the authority of the neighboring country cannot be lawfully exercised. It sometimes means the government which is established in separate parts of a territory occupied by a political society. It may also be said to be a society by which a multitude of people unite together under the dependence of a superior power for protection. 2 Burlemaqui, 21. — And sometimes it means a multitude of people united by a communion of interest and by common laws. This is the definition given by Cicero.
Either of the above definitions will bring the district within the meaning of the constitution. It is certainly such an extent of country as excludes from within its limits the force and operation of the laws of the governments which adjoin it. There exists within it a political society with a government over it. That government for all general concerns of the society is the congress and president of the United States. And as to its local concerns, there are subordinate authorities acting under the superintendence of the national government. This political society is dependent upon the superior power of the United States.
It is not essential to the formation of a state that the members of it should have the power in all cases of electing their own officers; but it is sufficient that there are certain rules laid down either by themselves, or those by whom they have submitted to be governed, for their conduct.
The people of the district are governed by a power to which they have freely submitted. They do not possess in as great degree the rights of sovereignty as those people who inhabit the states. And if the free exercise of all the rights of sovereignty, uncontrouled by any other power, is essential in the formation of a state, none of those sections of the country which form the United States are entitled strictly to the appellation of a "state:" for there are certain rights of sovereignty which they cannot exercise in their state capacity, such as regulating commerce, making peace and war, &c.
The term "states," as used in the constitution may, according to the subject matter, be understood in either of the above senses. It has been understood by a majority of the judges of this court in the case of Chisholm's Executors v. The State of Georgia, 2. Dall. 457, to mean the government.
The idea, that those territories which are under the exclusive government of the United States are to be considered in some respects as included in the term "states" as used in the constitution, is supported by the acts of congress.
In the 2d paragraph of the 2d section of the 4th art. of the constitution, it is declared, that "a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime." It is also declared in the same article of the constitution, that "no person held to service or labour in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due."
Congress, in prescribing the mode of executing the powers contained in these clauses of the constitution, passed a law dated Feb. 12, 1793, ch. 7, sec. 1, vol. 2, p. 165, which declares "that whenever the executive authority of any state in the union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled," and shall produce such evidence of the fact as is prescribed by the act, the person so escaping shall be surrendered, &c.—A similar provision with respect to persons held to labour or service under the laws of the states or territories, is contained in the same act of congress.
If these territories are not, as to some purposes, included in the term "states," used in the above clauses of the constitution, congress could not constitutionally pass a law making it the duty of the executive of a state to comply with such a requisition of the executive of one of those territories. If they are thus included why may they not also be included in that part of the constitution which uses the same term, "states," in defining the jurisdiction of the courts? The citizens of the territories are subject to the same evil, if they are obliged to resort to the state courts, which was intended to be remedied by that clause of the constitution which authorises citizens of different states to resort to the federal courts. And if being within the same evil authorised congress to give a latitude to the term "states" in one part of the constitution, the same reason will authorise the same construction of the same term in another part.
The words of the constitution only authorise such a requisition to be made by the executive of a state, upon the executive of another state. It must therefore be acknowledged either that the territories are included in the term states, or that the act of congress is unconstitutional. As a further proof of the same construction of the word state, congress, by the 6th sec. of the act supplementary to the act concerning the district of Columbia, have enacted that in all cases where the constitution or laws of the United States provide that criminals and fugitives from justice, or persons held to labour in any state, escaping into another state shall be delivered up, the chief justice of the said district shall be, and he is hereby required to cause to be apprehended and delivered up such criminal, &c. who shall be found within the district. Independent of these considerations, it seems to be agreeable to the first principles of government, that all persons who are under the peculiar and exclusive government and protection of a particular power, have, as it were, a natural claim upon that power for protection and redress of wrongs.—And that the courts of the United States are the most proper tribunals to which the people of the district of Columbia can apply for redress in all cases where the aggressor can be found within the jurisdiction of those courts. It seems to be a denial of that protection which the United States are bound to afford to those who reside under their exclusive jurisdiction, to say that because you may sue your debtor in a foreign tribunal (if I may use the expression) therefore you shall not resort to our own courts although your debtor may be found within our jurisdiction. The framers of the constitution could never have supposed it necessary to declare in express terms that the courts of the United States should have power to hear and decide on the complaints of one of the citizens of those districts that were under the exclusive government and care of the United States, to whom alone allegiance was due. They could not have intended to deny to that part of the citizens of the United States who inhabit the territories, the privileges which were granted to citizens of particular states, and even to foreigners; especially the right of resorting to an impartial tribunal of justice. When they permitted aliens to resort either to the state or to the federal courts, they could not mean to confine one of their own exclusive citizens to a remedy in the state courts alone. It would be strange that those citizens who owe no allegiance but to the United States, should be debarred from going into the courts of the United States for redress, when that privilege is granted to others in like circumstances, who owe allegiance to a foreign, or to a state government.
C. Lee, contra. This is a new question, which has arisen in consequence of the cession of the district of Columbia, by the states of Virginia and Maryland to the United States.
The words of the constitution do not take in the case—and the act of congress is also too narrow.
The constitution is a limited grant of power. Nothing is to be presumed but what is expressed.
It is contended that a citizen of the district of Columbia is a citizen of a state. It is said that he is a citizen of the United States, and not being a citizen of the same state with the defendant he must be a citizen of a different state. But there may be a citizen of the United States who is not a citizen of any one of the states. The expression a citizen of a state, has a constitutional meaning. The states are not absolutely sovereigns, but (if I may use the expression) they are demi-sovereigns. The word state has a meaning peculiar to the United States.—It means a certain political society forming a constituent part of the union. There can be no state unless it be entitled to a representation in the Senate. It must have its separate executive, legislative and judicial powers. The term may also comprehend a number of other ideas.
Even if the constitution of the United States authorises a more jurisdiction than the judiciary act of 1789 has given, yet the court can take no jurisdiction which is not given by the act. I therefore call for the law which gives a jurisdiction in this case.
The jurisdiction given to the federal courts in cases between citizens of different states, was, at the time of the adoption of the constitution, supposed to be of very little importance to the people. See the debates in the Virginia Convention, p. 109, 122, 128.
In no case from any one of the territories has this court ever considered itself as having jurisdiction; and in that of Clark v. Bazadone, (Ante, vol. 1. p. 212) the writ of error was quashed because the act of congress had not given this court appellate jurisdiction in cases from the territories.
This is not a case between citizens of different states, within the meaning of the constitution. And in the case of Bingham v. Cabot, 3. Dall. 382, it was decided by this court that the courts of the United States were courts of limited jurisdiction, and that it must appear upon the record that the parties were citizens of different states in order to support the jurisdiction.
E.J. Lee, in reply. A law was not necessary to give the federal courts that jurisdiction which is provided for by the constitution. It was only necessary to limit the amount of the claims which should come before the different inferior courts.
If a demand should be made by the executive power of the district of Columbia, upon the executive of a state to deliver up a fugitive from justice, the constitution would apply, and oblige the state executive to respect the demand.
If the term state is to have the limited construction contended for by the opposite counsel, the citizens of Columbia will be deprived of the general rights of citizens of the United States.—They will be in a worse condition than aliens.
By the 4th article of the constitution of the United States, sec. 1 "Full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state." If the district of Columbia is not to be considered as a state for this purpose, there is no obligation upon the states, to give faith or credit to the records or judicial proceedings of this district. But congress, in carrying into effect, this provision of the constitution, by the act of March 27th 1804, (vol. 7. p. 152) has expressly declared that it "shall apply as well to the public acts," &c. "of the respective territories of the United States and countries subject to the jurisdiction of the United States, as to the public acts," &c. "of the several states," thereby giving another clear legislative construction to the word states, conformable to that for which we contend.
Again, by the 9th sec. of the 1st art. of the constitution of the United States, "No tax or duty shall be laid on "articles exported from any state." Can congress lay a tax or duty on articles exported from the district of Columbia, without a violation of the constitution?
By the same sec. "no preference shall be given by any"regulation of commerce or revenue to the ports of one state over those of another." Can congress constitutionally give a preference to the ports of the district of Columbia over those of any of the states?
The same section says, "Nor shall vessels bound to or "from one state be obliged to enter, clear, or pay duties in "another." Can vessels sailing to or from the district of Columbia be obliged to enter, clear, or pay duties in Maryland or Virginia? Yet all this may be done if the rigid construction contended for be given to the word state.
It is true that the citizens of Columbia are not entitled to the elective franchise in as full a manner as the citizens of states. They have no vote in the choice of president, vice-president, senators and representatives in congress. But in this they are not singular. More than seven eighths of the free white inhabitants of Virginia are in the same situation. Of the white population of Virginia one half are females—half of the males probably are under age—and not more than one half of the residue are freeholders and entitled to vote at elections. The same case happens in some degree in all the states. A great majority are not entitled to vote. But in every other respect the citizens of Columbia are entitled to all the privileges and immunities of citizens of the United States.
Marshall, Ch. J. delivered the opinion of the court.
The question in this case is whether the plaintiffs, as residents of the district of Columbia, can maintain an action in the circuit court of the United States for the district of Virginia.
This depends on the act of congress describing the jurisdiction of that court. That act gives jurisdiction to the circuit courts in cases between a citizen of the state in which the suit is brought, and a citizen of another state. To support the jurisdiction in this case therefore it must appear that Columbia is a state.
On the part of the plaintiffs it has been urged that Columbia is a distinct political society; and is therefore "a "state" according to the definitions of writers on general law.
This is true. But as the act of congress obviously uses the word "state" in reference to that term as used in the constitution, it becomes necessary to inquire whether Columbia is a state in the sense of that instrument. The result of that examination is a conviction that the members of the American confederacy only are the states contemplated in the constitution.
The house of representatives is to be composed of members chosen by the people of the several states; and each state shall have at least one representative.
The senate of the United States shall be composed of two senators from each state.
Each state shall appoint, for the election of the executive, a number of electors equal to its whole number of senators and representatives.
These clauses show that the word state is used in the constitution as designating a member of the union, and excludes from the term the signification attached to it by writers on the law of nations. When the same term which has been used plainly in this limited sense in the articles respecting the legislative and executive departments, is also employed in that which respects the judicial department, it must be understood as retaining the sense originally given to it.
Other passages from the constitution have been cited by the plaintiffs to show that the term state is sometimes used in its more enlarged sense. But on examining the passages quoted, they do not prove what was to be shown by them.
It is true that as citizens of the United states, and of that particular district which is subject to the jurisdiction of congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon them.—But this is a subject for legislative not for judicial consideration.
The opinion to be certified to the circuit court is that that court has no jurisdiction in the case.
* Present, Marshall, Ch. J.—Cushing, Paterson, Chase and Washington, Justices.
