174 



CONGRESS, UNITED STATES. 



decree. The Supreme Court came to that 

 conclusion. Among other objections to the 

 validity of that decree was this: the court in 

 Florida consisted of judges appointed for a lim- 

 ited time, whereas the courts known to the 

 United States under the Constitution of the 

 United States were composed of judges holding 

 office during good behavior ; and it was clear 

 that if what had been done was done under the 

 judiciary clause of the Constitution of the Uni- 

 ted States the sale was void, because the court 

 was unconstitutional. Chief-Justice Marshall 

 said: 



It has been contended that, by the Constitution, 

 the judicial power of the United States extends to all 

 cases of admiralty and maritime jurisdiction, and 

 that the whole of this judicial power must be vested 

 " in one Supreme Court and in such inferior courts 

 as Congress shall from time to time ordain and es- 

 tablish." Hence it has been argued that Congress 

 cannot vest admiralty jurisdiction in courts created 

 by the Territorial Legislature. 



We have only to pursue this subject one step fur- 

 ther to perceive that this provision of the Constitu- 

 tion does not apply to it. The next sentence de- 

 clares that "the judges, both of the supreme and in- 

 ferior courts, shall hold their offices during good be- 

 havior." The judges of the superior courts of Flor- 

 ida hold their offices for four years. These courts, 

 then, are not constitutional courts, in which the 

 judicial power conferred by the Constitution on the 

 General Government can be deposited. They are 

 incapable of receiving it. 



" Now, let me apply this to what I have just 

 stated. If it be so, why are your courts now 

 in those States vested with the judicial author- 

 ity conferred by the Constitution of the United 

 States, exercising all their functions, adminis- 

 tering justice as between man and man in those 

 cases in which jurisdiction is' conferred upon 

 them by the Constitution? Why are they 

 there? Only because they are still States. 

 The moment you strike them down from the 

 elevated character of States to the subordinate 

 character of Territories, at once the judicial au- 

 thority of the United States ceases within their 

 limits ; and yet what is the Supreme Court 

 doing? What did they do the other day unan- 

 imously with the exception of the Chief Jus- 

 tice? They are receiving now records from 

 the decisions of the courts in those States and 

 they are hearing them. By a special order, 

 passed a few days since, they directed that par- 

 ties whose cases were here from the States 

 lately in rebellion should have a right, if they 

 applied for its enjoyment, to have their cases 

 heard in advance, they having lost their pri- 

 ority only because of the war, and the court 

 held that, the war ended, the judicial authority 

 of the United States at once attached ; and if 

 the doctrine of Canter vs. The American Insur- 

 ance Company be sound (and nobody can dis- 

 pute it; nobody, certainly, in the past has dis- 

 puted it), if the judicial authority contained in 

 the Constitution is an authority conferred only 

 upon the courts with reference to the United 

 States as contradistinguished from the Territo- 

 ries, the Supreme Court could only have come 

 to the conclusion that those cases were to be 



heard now and decided now, because they wero 

 of opinion that those States are now States of 

 the Union. 



" Now, as to this right of war. War, says 

 my friend from Maine, though it be a civil war, 

 carries with it all belligerent. rights. It does 

 carry all belligerent rights that are not incon- 

 sistent with the character of the parties engaged 

 in the war. What sort of a war is it that we 

 are supposed to have been waging against these 

 insurgents, this civil war, as he imagines it to 

 have been ? Was it a war of conquest ? Could 

 it be a war of conquest? If it was, it would 

 have been the most extraordinary conquest that 

 ever was made ; it would have been a Govern- 

 ment conquering itself. The States are a part 

 of itself. Its existence depends upon the ex- 

 istence of the States. You cannot elect a Pres- 

 ident without the States; you cannot elect 

 members of the House of Representatives with- 

 out the States ; you cannot elect members of 

 the Senate without the States. Then to sup- 

 pose that, under the authority to suppress in- 

 surrections, however those insurrections may 

 be carried on, into whatever magnitude they 

 may culminate, is to enable the Government to 

 destroy the States under the doctrine of con- 

 quest, is to hold the doctrine that the Govern- 

 ment can conquer itself. Who ever heard of 

 that ? What ! the Government of the United 

 States conquer States, and, by virtue of that 

 conquest, extinguish the States? You might 

 as well attempt to conquer the President ; per- 

 haps that may be done one of these days, sooner 

 or later ; or the President might as well attempt 

 to conquer Congress ; that may be done ; and 

 some people think, perhaps, that it ought to be 

 done; but what is the result of either? The 

 Government is either fatally destroyed or se- 

 riously wounded. A power, then, conferred 

 on Congress to preserve is a power which 

 Congress has a right to exert for the purpose 

 of destroying. A power to be exerted merely 

 for the purpose of vindicating the authority of 

 the Constitution and the laws, seeing that they 

 are faithfully observed by those who are bound 

 to observe them, is an authority which, with 

 reference to the people upon whom it is exer- 

 cised, may be so carried on as to destroy the 

 authority and the laws. 



" Can that be so ? What is the meaning. of 

 the book ? [Holding up Vattel.] My friend 

 did not read it. You can acquire that is the 

 chapter of Vattel to which he called my atten- 

 tion you can acquire property by conquest ; 

 but I speak, as I think, understandingly, not 

 only standing upon the authority of Vattel, but 

 upon the authority of every writer upon the 

 law of nations with which I am at all familiar, 

 when I say that nowhere do any of them main- 

 tain the proposition that a Government can 

 conquer itself. One nation carrying on war 

 against another may obtain its territory, its 

 people, by one of two modes, either by con- 

 quest effected by absolute subjugation, or by 

 treaty independent of actual conquest ; buf 



