rable consideration; must be all adjusted together or all kept open together. In truth, although it is not necessary for this discussion to go so far, the fact that as, in such a transaction as this, it is a nation which has entered your territory and perpetrated the act you complain of; that a foreign nation has wielded an individual instrument to assail this nation-this fact impresses instantly on the whole affair a mere and pure national character, subjects it to national control, and merges, annihilates, and excludes all subordinate constituents and all subordinate and individual agency of crime. Certainly, at least, it commits to one and the same jurisdiction the disposition and adjustment of the public act, and of all such constituents and all such agency. The conclusion is unavoidable, therefore, that the State right here asserted cannot be set up against the powers of the general government. As against them it has no existence.

You arrive at the same conclusion by a consideration of the legislative power of this government over this kind of transaction, of which I have just spoken. If, by a legislative declaration that the invasion of our territory by force and by armed men, the burning of The Caroline, and the destruction of life, was an act of war, and that similar enterprises are acts of war, you confessedly subject the actors in these transactions to the control of the national government alone; and if you may make such a declaration, then what becomes of an asserted, inalienable, constitutional State right to try and to hang such actors as for a pure municipal offence? Sir, it has no existence; and the only question which is open at all is, whether you may exert your own acknowledged power in the particular mode proposed by the bill. . The question is not whether you invade any State right and transcend any power of the general government by doing so, but whether you exercise your constitutional power in a constitutional way. That question I have already too much at large attempted to answer.

I have left myself neither time nor strength to say much upon the expediency of passing this law. It has been very earnestly maintained by the Senator from Pennsylvania that, even if have the constitutional power to interpose your appellate and supervising jurisdiction in this class of cases, after judgment in the State courts, you have no constitutional power to do it before judgment; and that, even if it were

you

expedient so to interpose after judgment, it is not expedient to do so before.

Let me say, Sir, in the first place, that, if you have power to interpose after judgment, you have power to do so before. If you can reverse a judgment, you can anticipate its rendition. If, within the Constitution, your judicial power extends to these cases or these controversies, whether you take hold of the case or of the controversy in one stage or another, is totally immaterial. The single question submitted to the national tribunals the question, whether, under the statute adopting the laws of nations, the prisoner is entitled to the immunity or exemption he claims may as well be extracted from the entire case, and presented and decided in those tribunals before any judgment in the State court, as it can be revised afterwards, on writ of Either way they pass on no other question. Either way they do not administer the criminal law of a State. In one case as much as in the other, and no more, do they interfere with the State judicial power.

error.

And this, Sir, I understand to be the opinion of the Supreme Court in Martin v. Hunter's lessee, 1 Wheaton, 304. In the very masterly judgment pronounced by Mr. Justice Story for the court, he says, (commenting on the power of removing causes from State to the national courts before judgment, page 349): "The existence of this power of removal is familiar, in courts acting according to the course of the common law, in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is always deemed, in both cases, an exercise of appellate and not of original jurisdiction. If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising that power, and, as congress is not limited by the Constitution to any particular mode or time of exercising it, it may authorize a removal before or after judgment. The time, the process, and the manner, must be subject to its absolute legislative control.” The honorable Senator interprets this opinion differently, and relies, first, on a passage in it on page 592 of the third volume of the condensed reports, from which he reads. But that passage applies only to a case where congress has made no law for the removal of the cause before judgment, and does not touch the question of your power

to make such a law. His other citation, from page 597, is equally inapplicable. It asserts nothing, and it says nothing, of your power to remove the cause; but intimates an apprehension only that the removal would be unavailing, without an attendant power to act on the State tribunal itself. But, as Mr. Justice Johnson observes, and as this bill supposes, the removal by habeas corpus supplies all that is needed to make a plain power an effectual one."

Hear Mr. Justice Johnson in the same case, page 379:

"This method," (he is speaking of the removal of causes from the State courts to the national, before judgment, as contrasted with the reversal of the judgments of the State courts by writs of error,) "this method, so much more unlikely to affect official delicacy than that which is resorted to in the other class of cases, might, perhaps, have been more happily applied to all the cases which the legislature thought it advisable to remove from the State courts."

And, in another passage, that learned judge seems to anticipate and advise the very process provided by this bill, page 381:

"With this view, by means of laws avoiding judgments obtained in the State courts, in cases over which congress has, constitutionally, assumed jurisdiction, and inflicting penalties on parties who shall contumaciously persist in infringing the constitutional rights of others, under a liberal extension of the writ of injunction and the habeas corpus ad subjiciendum, I flatter myself that the full extent of the constitutional revising power may be secured to the United States, and the benefits of it to the individual, without ever resorting to compulsory or restrictive process upon the State tribunals."

The honorable Senator objects, too, that a removal of the cause, before judgment, to the district court, and thence to the circuit court by appeal, and thence, by a second appeal, to the supreme court, results in giving to the supreme court original jurisdiction in a case where, by the Constitution, it can take appellate jurisdiction only. This seems to me not very intelligible, or, if intelligible, not at all sound. Certainly all the jurisdiction which the supreme court obtains by this bill is appellate in the strictest sense. The cause is removed first to the district court, and there tried once on its merits. It goes thence, by appeal, to the circuit court, and is there tried on its merits again. It passes, at last, to the supreme court, where it is finally and fully tried on its merits again; and yet, obtaining the cause through this series of appeals, the supreme

court is supposed to exercise original, not appellate, jurisdiction. True, the State court did not try the cause, and, if the bill removed it per saltum, by the writ of liberty, from that to the supreme court, it might be objected that it communicated original jurisdiction to the supreme court. But it does no such thing. Surely it is not meant to be said that the jurisdiction which it does give to the supreme court is not appellate, because the appeal is from a federal court, and not, directly or indirectly, from a State court? Appellate jurisdiction is that which is exercised by a court over causes submitted to it by appeal from another court. This is all it means in this part of the Constitution. This is exactly the jurisdiction given in this bill to the supreme court. To say that, because you cannot remove the cause at once, before judgment, by habeas corpus, to the supreme court, you cannot do it indirectly, mediately, through the district and circuit courts, after successive trials there, is to say that you cannot give appellate, because you cannot give original jurisdiction. If no more is meant, however, to be said, than that the State court must try the cause to judgment before it can be removed at all, why this, of course, assumes the precise proposition to be proved.

I submit, too, Sir, that if it be expedient to review judgments of the State courts in this description of cases, it is expedient to interpose before they are rendered. The honorable Senator vehemently contends that it is odious and offensive to the States not to wait till judgment, humiliating to their pride, exasperating to their feelings,—the last and unkindest cut of all, to their dimmed, affronted, and diminished sovereignty. Sir, mark the change of time and opinion. Within five minutes he has interrupted me to remind you that the counsel in Martin v. Hunter's lessee, contended that, as matter of policy, to disarm the controlling jurisdiction of your courts, as far as might be, of its harsher and more offensive aspects and operation, it ought to be exerted in the earliest practicable stage of the proceeding below. Such was Mr. Justice Johnson's opinion in the same case. Such, I own, is mine. In the beginning of these prosecutions, little or no interest may be felt by anybody. The private prosecutor, the court, the law-officer of the State, and the counsel of the prisoner, alone, know or care much about the matter; and a preliminary and single issue of law,

or fact, or both, to settle the question of the claim of exemption from the criminal jurisprudence of the State, may be framed, and submitted, and even decided quietly, and without excitement. But let the cause go forward in the court of the State; let the jury try it; let the bar discuss it before the assembled country; let the press, and let party lay hold on it; let a foreign government begin to take the matter up; enlist the pride and the sense of character of the bench, and the whole State, by an elaborate judgment, fully committing their judicial reputation against the exemption claimed; and then the interposition of the national tribunals becomes, indeed, an odious and perilous enterprise.

Besides, Sir, in determining upon the stage in which you are to interpose, if you will interpose at all, you will not lose sight of the consideration, that the object of your interposition, the ground on which you are authorized to interpose at all, is the preservation of the national peace. A leading question would be, therefore, whether the earliest will not be the most effectual interposition for the great object in view? Is it not so, that the sooner the prisoner is in the hands and within the control of the government, to which his country looks for his deliverance, the government which must insure his acquittal, or answer for his condemnation,-the better for all parties?

But the honorable Senator is against your jurisdiction in all forms and in all stages. Sir, I cannot concur with him. I would assert the jurisdiction, on the contrary, on the same grand, general reason, for which it was given to you. It was given as a means of enabling you to preserve honorable peace, or to secure the next best thing, a just war, a war into which we may carry the sympathies and the praise and the assistance of the world. Accept and exert it for these great ends. Do not be deterred. from doing so, and from doing so now, by what the honorable Senator so many times repeated to you, that negotiations are pending with England; that she has insulted and menaced you, and withheld reparation, and withheld apology; and that, therefore, the passage of the bill, at this moment, would be an unmanly and unseasonable courtesy or concession to her. How much England knows or cares about the passage of this bill; what new reason it may afford to the Foreign Quarterly Re