312 



CONGRESS, U. S. 



gress of the United States. What is the lawful 

 Legislature of the State ? Although they were 

 literally chosen under the amended constitution 

 of Virginia (adopted in 1851), and the statute 

 of the State, nevertheless I say that it is com- 

 petent for Congress to say and it is not only 

 Competent, but it is the imperative duty of Con- 

 gress to say that not a man of them who re- 

 fused to take the oath prescribed by the Fed- 

 eral Constitution, and who took the oath of 

 that treasonable conspiracy at Richmond, ever 

 became a member of the Legislature of the 

 State of Virginia. Who then are the Legisla- 

 ture of Virginia f Only those who qualify in 

 pursuance of the requirements of the ordinance 

 of the people themselves, by taking the oath 

 prescribed by the Federal Constitution, and 

 by the Virginia constitution. If those gentle- 

 men had chosen to observe that form they 

 might have constituted a majority of the Le- 

 gislature ; but they did not do it, either at 

 Wheeling or at Richmond. They violated the 

 constitution of their own State, as well as the 

 Federal Constitution, when they went to Rich- 

 mond and took the oath of treason. 



"Now, who are the judges of this matter? 

 I say it without tKe fear of contradiction, be- 

 cause it has been affirmed by every branch of 

 this Government, legislative, executive, and 

 judicial, more than once, that when the storm 

 of revolution shakes the civil fabric of a State 

 of the Union, the ultimate and final arbiter to 

 determine who constitute the legislative and 

 executive government of that State, and hold 

 its great trust of sovereignty, is the Congress 

 of the United States, or the President acting by 

 authority of an act of Congress. The great 

 case of Luther and Borden must be fresh in the 

 mind of every Representative of the people, 

 and that was the very question which was then 

 and there decided. What did the court decide 

 in that case ? Luther brought his action for 

 trespass to his domicile in the circuit court of 

 the United States for the district of Rhode 

 Island. He charged the defendant in that case 

 with having broken open his residence, which 

 every man knows is, under our laws, his castle. 

 He charged in his declaration that defendant 

 not only broke into and entered his house, but 

 went through all his rooms, from garret to cel- 

 lar, in search of his person ; that he had vio- 

 lated, if you please, his sacred right of dom- 

 icile. 



"Now, I may be pardoned for reminding 

 gentlemen here that theYe is no right known to 

 the citizen, under the American law, or tinder 

 the law of any country beneath the sun where 

 the principles of the common law obtain, which 

 is looked upon as more sacred than the right 

 of domicile. You know that by the common 

 law it is held so sacred that he who invades it 

 without the leave of the owner, and especially 

 menacingly, is not entitled to the Benefit of the 

 rule that the party whom he assails must flee 

 to the wall, but he may suffer instant death, 

 and the owner is justified before the law, be- 



cause his hearthstone is not to be violated by 

 a malicious intruder against his protest and 

 against his consent. There was a strong case 

 against defendant on that record, if he had not 

 justified the act. But he did justify and how ? 

 Rhode Island had been in revolution. Two 

 opposing governments had been in operation. 

 Who was to decide which was the lawful gov- 

 ernment? They first said that the courts were 

 to decide. They asked the courts of Rhode 

 Island to sit in judgment upon the question 

 whether the government under which they 

 held their commission was a government at all. 

 The Chief Justice of the United States, with 

 bitter irony and sarcasm, remarked that he did 

 not ' see how the question could be tried and 

 decided in a State court ; ' for that, whenever 

 they arrived at the conclusion that the govern- 

 ment to which they owed their existence was 

 no government at all, the court itself ceased to 

 be a court, and could not pronounce the judg- 

 ment. The breath of life would go out of JIB 

 body instantly. This action, however, for tres- 

 pass, was instituted in the United States Circuit 

 Court for the district of Rhode Island. 



" The defendants, by their plea, justified the 

 trespass on the ground that plaintiff was en- 

 gaged in insurrection, together with others, 

 against the State ; that the State was, by com-, 

 petent authority, declared under martial law ; 

 and that defendants, being in the military ser- 

 vice of the State, by command of their superior 

 officer, broke open and entered plaintiffs house. 

 The plaintiff denied the authority, and replied 

 it was defendants' own proper wrong. In other 

 words, was the government against which the 

 plaintiff was in insurrection the government of 

 Rhode Island? 



" The case finally came up to the Supreme 

 Court of the United States. The Chief Justice 

 (Taney), in delivering his opinion, said that it 

 was a political question, and that the decision 

 of it by the Federal executive, under the au- 

 thority of Congress, was binding on the judi- 

 ciary. He also said the power to decide the 

 question which of two governments in a State 

 is the true government is in Congress. 



"That decision amounts to just this, and 

 that is what gives importance to it in the dis- 

 cussion of this question : if the Congress of the 

 United States solemnly decide, as they are the 

 ultimate arbiter of this political question, that 

 the people of Western Virginia have no right 

 to maintain the government which they have 

 established, and under which they have made 

 this new constitution, and apply here for ad- 

 mission, they thereby decide that it is void. 

 All that remains is for the executive to follow 

 your example, ano^ leave that people to their 

 fate. 



" What is the effect of such a decision by 

 Congress and the executive? It is to bind your 

 own judiciary to hold the legislation of that 

 people for the protection of their lives and prop- 

 erty void. You bind the judiciary of the Sttite 

 itself. You bind everybody who is appointed 



