A Century of Federal Judicature. jury, "must be to effect something of a pub lic nature, to overthrow the government, or to nullify some law of the United States, and totally hinder its execution or compel its re peal. A band of smugglers may be said to set the laws at defiance, and to have con spired together for that purpose, and to re sist by armed force the execution of the revenue laws; they may have battles with the officers of ihe revenue, in which numbers may be slain upon both sides; and yet they will not be guilty of treason, because it is not an insurrection of a public nature, but mere ly for private lucre or advantage. A whole neighborhood of debtors may conspire to gether to resist the sheriff and his officers in executing process on their property—they may perpetrate their resistance by force of arms . . . and yet. they will be liableonly as felons, and not as traitors. Their insurrection is of a private, not or a public, nature; their object is to hinder or remedy a private, not a public, grievance. A number of fugitive slaves may infest a neighborhood, and may be encouraged by the neighbors in combining to resist the capture of any of their number; . . they are guilty of a felony and liable to punishment, but not as traitors. Their insurrection is for a private object and connected with no public purpose. It is true that constructively they may be said to resist the execution of the fugitive slave law, but in no other sense than the smugglers resist the revenue laws and the anti-renters the execution laws. Their in surrection, their violence, however great their numbers may be, so long as it is mere ly to attain some personal or private end of their own, cannot be called levying war. Alexander the Great may be classed with robbers by moralists, but still the political distinction will remain between war and rob bery. One is public and national, the other private and personal." After the argument of the McCardle case, 6 Wallace 318; 7 ib. 509, which involved the
constitutionality of the Reconstruction Acts, the opinion became prevalent that the judg ment would be averse to the government. Pending the consideration of the case by the court an act was therefore introduced in Congress repealing so much of the law as authorized an appeal to the Supreme Court on writs of habeas corpus, together with the exercise of jurisdiction on appeals already taken. When the court's attention was called to the pending act, the majority voted to await the action of Congress. To this action Justice Grier entered a vigorous pro test, which he read in court. "This case," he said, "was fully argued in the beginning of this month. It is a case that involves the liberty and rights, not only of the appellant, but of millions of our fellow citizens. The country and the parties had a right to ex pect that it would receive the immediate and solemn attention of this court. By the post ponement of the case .we shall subject our selves, whether justly or unjustly, to the im putation that we have evaded the perform ance of a duty imposed on us by the Consti tution, and waited for legislation to interpose to supercede our action and relieve us from our responsibility. I am not willing to be a partaker either of the eulogy or opprobium that may follow, and can only say: 'Pudct hacc opprobia nobis, Et did potitissc; ct non potnissc repclli.' " 1
Justice Woodbury's (1845-51) short ser vice gave promise of great distinction. He had already proved the variety and extent of 1 Among other cases of interest in which Justice (Irier formulated his views may be mentioned State of Texas r. White, 7 Wallace 700; State of 1'ennsvlvania v. Wheeling Bridge Company, 18 Howard 421; Kundle v. Delaware and Raritan Canal Company, 14;/>. 80; The License Cases, 5 ib. 504: The Passenger Cases, 7 ib. 283; Gordon T'. United States, 7 Wallace 193: Chenango Bridge Company <'. Kinghamton Bridge Company, 3 ib. 71; Dred Scott T. Sanford, 19 Howard 393; Jackson ->. James, 20 ib. 296; Marshall r. Baltimore and Ohio Rail road Company, 16 it. 314; Richardson ••. doddard, 23 ib. 28; The Magnolia, 20 ib. 296; Barnard r. Adams, 10 ib. 270; O'Reilly v. Morse, 15 it. 62; Corning?•. Burden, 15 it. 252.
