By referring to this case, pp. 334, 335, your honors will find that Buenos Ayres had no lawful jurisdiction over the islands, and that our Executive Government had so decided; but Buenos Ayres avowed the acts of those claiming to act under her authority, and our Government discharged the prisoners who had been captured as pirates, disclaiming, under those circumstances, to hold them personally criminally responsible.
The next proposition which I state is this: "That, by the public law of the world, the law of nations, and the laws of war, the commission in evidence, supported by the proof in the case as to the color of authority under which it was issued, would afford adequate protection to the defendants against a conviction for piracy; and being an authority emanating neither from a foreign Prince nor foreign State, nor from a person merely, the offence charged in the last five counts of the indictment, is not within the purview of the 9th section of the Act of 1790, and the defendants cannot be convicted under either of those counts, if they acted in good faith under that commission."
I refer your honors to the case of the Santissima Trinidad, 7 Wheaton, 283, to the opinion of Judge Story, in which he says:
"There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship, which may as well be disposed of in connection with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent Government, by the Executive or Legislature of the United States, and therefore is not entitled to have her ships-of-war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her Colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum, and hospitality, and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent, without making ourselves a party to the contest and departing from the posture of neutrality. All captures made by each must be considered as having the same validity; and all the immunities which may be claimed by public ships in our ports, under the laws of nations, must be considered as equally the right of each, and as such must be recognized by our Courts of Justice, until Congress shall prescribe a different rule. This is the doctrine heretofore asserted by this Court, and we see no reason to depart from it."
Your honors, by referring to the case of The Bello Corunnes, 6 Wheaton, 152, will see the doctrine laid down distinctly, that acts may be piratical for all civil purposes which would not authorize the conviction of the perpetrators criminally as pirates; e.g., a citizen of the United States, taking from a State at war with Spain a commission to cruise against that power, contrary to the 14th art. of the Spanish Treaty;—and the Court held, in that case, that that would involve the consequences of a piracy, for the purpose of condemnation of property; but it would not be criminal piracy, under either the law of nations or of the United States.
On the general subject of privateers I had a reference to Vattel, but I do not think it necessary to read it, because the authorities on that subject cover it so fully.
I come now, if your honors please, to what my learned friend, when he addressed the Court on the part of the Government, has been pleased to call the political part of this case; and I have distinctly stated in my propositions what I contended for on that subject. In the first place, that the Federal Executive Government, and the executive governments of the States, under the Constitution of the United States, each possess the jurisdiction to decide whether their respective acts are within or exceed the limits of their respective constitutional powers, in cases of collision between them in their administrative acts, operating upon the public domain, or upon the State, or its citizens as a body politic.
I shall, without stopping for any discussion, simply state the subordinate propositions by which I think that is established, and give a reference to the authorities. I say, in the first place, as I said to the Jury, that citizens of the United States owe a divided allegiance, partly to the United States and partly to their respective States. They can commit treason against either; for the State constitutions and laws define and punish treason against the States, as the Constitution of the United States does treason against them.
The Federal and State Governments are each supreme and sovereign within the limits of their respective jurisdictions under the Federal and State Constitutions; each operates directly upon the citizen, and each also operates as a check and restriction upon the other, and upon the encroachments of the other, in seeking to extend beyond legitimate limits its jurisdiction over the citizen, or over the public domain common to both. Now, if your honors please, in regard to that, I will very briefly refer you to what I rely upon. I refer, in the first place, to sections 2 and 3, of Article 6th, of the Constitution of the United States.
"Sec. 2. This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.