Benjamnin F. Butler, Butler's Book: Autobiography and Personal Reminiscences of Major-General Benjamin Butler

[152] counsel in the Supreme Court, I called upon him for the purpose of asking him to advise the President to gain time by submitting the question to the Supreme Court, which would give an opportunity for the passions of the South to cool, and hand the matter over to the next administration, thereby relieving his administration of its unhappy predicament. I said to him:--

“I have read your opinion that the government cannot use its army and navy in South Carolina to coerce that State. I do not agree with you, but let that pass. Now, secession is either a riot or treason. If it be only a riot, the sooner we know that in the highest form of knowledge, a decision of the Supreme Court, the better for all. If it be treason, then the presenting of an ordinance of secession by the commissioners is an overt act of treason. It is an official call by the representatives of an armed combination of citizens upon the President to demand the surrender of a portion of the territory of the United States to a foreign nation. That is an overt act of treason of course, at common law. Our own Constitution defines treason to consist only in levying war against the United States, or adhering to its enemies and giving them aid and comfort. To present an ordinance of secession to the President of the United States would be adhering to the enemies of the United States and giving aid and comfort to its declared enemies, and hence an overt act of treason. Let the President, when the commissioners call upon him for this purpose, admit them. Let them present the ordinance. Then let the President say to them: ‘Gentlemen, you are either ambassadors from a foreign state, and should be received and treated as such, or you are citizens of the United States giving aid and comfort to its declared enemies, which is treason. I must receive you in one of these two characters or not at all. I think your condition is the latter. Gentlemen, you will go hence into the custody of the marshal of the United States as prisoners, charged with treason against your country.’ Then let a grand jury be summoned here in Washington, and indict the commissioners, or let the Chief Justice of the Supreme Court of the United States, acting as a commissioner, as Marshall did in the case of Aaron Burr, examine the question with all the imposing form and ceremony that attended his trial. Let the Chief Justice bind them over to be indicted by a grand jury, and then have the matter brought before the full court, as can easily be done, and have ”