Now, if the Court please, this is the point of the whole thing—that, under this peculiar Constitution of ours, and under this division of the subjects of Government, each sovereign is judge of when the other has passed the limits of his authority, and that the States possess the right to compel the obedience of their citizens, and the United States possess the right to compel the obedience of their citizens. It is sufficient for us to say that we represent, as Federal citizens, the Government of the United States in its interpretation of its own position towards those its citizens, or those persons not its citizens, who are alleged to have perpetrated crimes against its commerce; and, whether there be, or not, speculations of political and theoretical and ethical and conscientious right, in good faith, to put yourself at variance with the Government of the United States because other people do so, or because the State authority does so, it follows that the United States, its authorities, its Courts, and its population, have the right to think, and feel, and act, as if its Government were in the right and you were in the wrong; and you, being brought within the criminal justice of their law, can find no support and no protection upon the good faith or upon the speculative political theories upon which you have rested for your protection and for your authority.
It is said, that outside of this question of the political and legal qualifications of this act which we say is criminal, the circumstances, actual and moral, which surround these actors, and are shown by their actions, have deprived their acts of the criminal quality which the statute affixes to them; and that if, in good faith, they thought there was a commission, and in good faith thought there was a rightful Government, that good faith, which has despoiled the American merchant of his property, is a plea in bar to the criminal jurisdiction of the United States of America, whose laws they have violated, although all this pretence, all this show, all this form of political and legal support qualifying their acts, comes from men whom the Constitution pronounces to be in the category of rebels and traitors, every one of them amenable to the final jurisdiction of our laws. This is but another form of saying that criminals joining hand in hand shall go unpunished. Make the number of them what you will, if in the eye of the law they assume authority which is on its face criminal and illegal, and even though it is a part of a general scheme and organization for violent military resistance to the authority of the country, no Court can dispense from the punishment, but must inflict it through the general and ordinary criminal authority in respect to the crime in question, leaving the question of dispensation to the clemency, the humanity, and the policy of the Government.
I believe that all the cases have been cited, either on the one side or the other, from the Reports of the Supreme Court of the United States, that have had to do with the question as to the political character of the revolted South American States. Those which were cited by my learned friend, Mr. Larocque, The Josefa Segunda (5 Wheaton, 338), The Bello Corunnes (6 Wheaton, 152), and The Santissima Trinidad (7 Wheaton, 283), are all authorities, as we suppose, for the view which the Courts adopt, even when they are Courts of a neutral nation—that they follow the decisions of their Government as to the public quality and character of belligerents.
Adjourned to Monday, 28 Oct., at 11 o'clock, A.M.
FIFTH DAY.
October 28, 1861.
ARGUMENT OF MR. DUKES FOR THE DEFENCE.
Mr. Evarts said: Perhaps it is unnecessary that I should say to the Court and learned counsel, that I shall refer to the Statute of treason, as well as to the Constitutional provision as to treason. The Statute of treason is found in the first section of the Crimes Act of 1790.
Mr. Dukes said: