whatever which was given to the world under circumstances affording so high a degree of security that it truly exposed the contents of another writing, as the circumstances, under which "The Federalist" appeared, afford that it truly exposes the contents of the Constitution. Two of its writers, and these the writers of this number, and of almost all of the entire work, were members of the convention. All three possessed extraordinary ability and uprightness; they would not misstate, and could not misunderstand, the Constitution; and they knew that they addressed a community whose utmost intelligence was at the moment all concentrated, with an intensity of interest which we can scarcely conceive, upon the study of its meaning. Especially were they under no temptation to overstate the powers of the new government. They wrote to urge its adoption upon an anxious and distrustful people, who desired union, to be sure, and commerce, and manufactures, and all social prosperity, but whose passion was liberty; and whose more habitual and more ardent affections were towards the States. They wrote to allay fears of its extent; to diminish the sense of the change it wrought; to bring down the exaggerated features, which timidity or design had sketched, to the dimensions of actual existence. The only temptation they in fact were exposed to was to understate its powers, and especially the judicial power, of which the old confederation had possessed next to none. Where, then, as a general remark, the writers of "The Federalist" admit a power or a principle in the Constitution, you may be sure it is there. Let me fortify the opinion I have thus given by the authoritative words of our great judicial expounder of the Constitution:

"The opinion of "The Federalist' has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties, in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the Constitution put it very much in their power to explain the views with which it was framed. These essays, having been published while the Constitution was before the nation for adoption or rejection, and having been written in answer to objections, founded entirely on the extent of its powers, and on its diminution of State sovereignty, are entitled to the more consideration where they frankly avow that the power objected to is given, and defend it.". Chief Justice Marshall, in Cohen v. Virginia, 6 Wheaton, 413.

Hear the avowal of Mr. Madison upon this subject, in the Virginia convention, during the discussion on the adoption of the Constitution, in the face of an opposition "before which the eyes of eagles would have blenched:

"The general policy of that clause (the 1st and 2d sections of the 3d article on the judicial power) is to prevent all occasions of having disputes with foreign powers, to prevent disputes between different States, and remedy partial decisions. I believe this to be wise and salutary.". 2 Elliot's Debates, 389.

And General Randolph, in the same convention (p. 418), said, speaking of the national judiciary:

"Its next object is to perpetuate harmony between us and foreign Powers. The general government, having the superintendency of the general safety, ought to be the judges how the United States can be most effectually secured and guarded against controversies with foreign nations. I presume, therefore, that treaties, and cases affecting ambassadors, other public ministers, and consuls, and all those concerning foreigners, will not be considered as improper subjects for a federal judiciary. Harmony between the States is no less necessary than harmony between foreign States and the United States. Disputes between them ought, therefore, to be decided by the federal judiciary."

It

Let me ask you to go a little farther back, and trace the history of the construction of the judicial department in the convention which framed the Constitution. See there how solicitously, and to what extent, the grand function of preserving the national peace was meant to be bestowed on it, and consider what rule of construction of its particular clauses this fact suggests. The Virginia plan of a Constitution was introduced, as Senators remember, by Mr. Randolph, on the twentyninth of May, in fifteen resolutions. How this proposed to frame the judicial power, I will remind you in a moment. was held under discussion until the fifteenth of June, when the Jersey plan, as it was called, was introduced by Mr. Patterson, in eleven resolutions. This was the plan of the State-rights party in the convention; of those who advocated the closest practicable adherence to the articles of confederation; the political ancestry of the State-rights sect of this day. And how did this construct the judicial department of the amended but still inadequate system of federal government which it designed? Mark the terms of the last branch of the fifth resolution:

"Resolved, That the judiciary so established shall have authority to hear and determine, in the first instance, on all impeachments of federal officers, and, by way of appeal, in the dernier resort, in all cases touching the rights of ambassadors; of all cases of captures from an enemy; in all cases of piracies and felonies on the high seas; in all cases in which foreigners may be interested." -2 Madison Papers, 865-6.

These resolutions having been rejected, for the general reason that they did not frame a sufficiently strong and a sufficiently national government, the convention resumed the examination of the Virginia plan; and, on the twenty-sixth of July, the grand general principle, on which the judicial power was to be erected, was finally adopted. Observe the comprehensive and energetic terms of that well-considered principle:

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Resolved, That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature, and to such other questions as involve the national honor and harmony." -2 Madison Papers, 1284.

It was on that day referred, together with other resolutions, which had also been adopted as the basis, in part, of the new Constitution, to a "committee of detail," for the purpose of being expanded and carried out into the necessary particular enumeration, and cast into technical expression; and that committee, on the sixth of August, reported this second section of the article of judicial power, substantially in the form in which it stands in the Constitution.

Pause now, for a moment, on these facts, and see if they do not prove, a priori, that the jurisdiction given by this bill must be found to be authorized by some part of the Constitution. You observe that all opinions in the convention concurred in the general principle, that the judicial department ought to be so constructed as to secure harmony of intercourse with the nations of the world. So much is certain; and how was this to be done? Precisely by intrusting all cases affecting that intercourse to the national tribunals. The State-rights party, as you have seen, would have committed to those tribunals "all cases affecting foreigners," in so many words; all cases— criminal, of course, as well as civil. Rejecting the plan of that party, for its incompleteness and inadequacy, do you believe that the majority of the convention meant to give to their own judiciary a narrower and feebler jurisdiction? Did they

mean to do less than even their anti-national opponents were willing to do? The principle which they adopted, as I have shown, was, that it should have cognizance of "all questions involving national peace and harmony." Now, when you advance to the construction of the detailed enumeration of the particular cases of jurisdiction into which this principle is expanded, and in which it is embodied in the Constitution, must you not so interpret that enumeration, if the letter of the language will allow you to do so, as to completely satisfy and exhaust the general principle itself? Must you not, are you not bound to so interpret it, to the limit of the letter, as to embrace all judicial cases and questions involving national peace and harmony? Did not the committee of detail frame this enumeration, did not the convention receive and adopt it, expressly and exactly, as embodying, expanding, and executing the whole of the great principle which had been resolved upon? Did not everybody understand that, under one or another, or all, of the cases and controversies enumerated, were comprehended all questions whatever of a judicial nature, affecting the national peace? Why, look again at the facts. The general principle was adopted, and sent to the committee of detail on the twentysixth of July, as I have said. The business of that committee was, not to narrow, enlarge, or change the principle, but to express it, perfectly and technically. The convention never afterwards narrowed or changed their own principle. They adjourned on that same day to await the report of the committee; and they accepted that report on the sixth of August, as their own principle, given back to them, in form and substance, neither less nor larger, nor other than when they committed it, except that it was drawn out into the requisite particularity of detail. Are we not bound, then, if the language will admit it

are we not bound to put such construction on these clauses granting judicial power as to give full effect to what we know was the meaning of the convention? Do you not defraud what you know was the principle intended to be embodied here, if you adopt an interpretation which will withdraw a large class of questions, or any questions, involving national peace and harmony, from the national judiciary? To your honor, to your integrity, I appeal, not less than to your intelligence, completely and in good faith, to execute the Constitu

tion, which is the record of the people's will, when you cannot fail to see you have discovered its meaning.

If, then, Sir, the cases comprehended in this bill — cases of State prosecutions against subjects of foreign governments domiciled abroad for acts done in the foreign character, under an order of the foreign government, and within the immunity of the laws of nations-if such cases as McLeod's, for example, do constitute a question involving the national peace and harmony, you are prepared to find them, by a diligent and a conscientious interpretation, under some clause or other of the article creating the judicial power, committed to the national judiciary. We must find them there, or the Constitution is untrue to its own ascertained principles, and inconsistent with its own expressed provisions.

Well, do not such cases directly involve the national peace ? That of McLeod, for instance, did it not? Why, Sir, the Constitution deems that the execution of a five hundred dollar judgment against the foreign acceptor of a bill of exchange may involve the national peace; and therefore it sends the trial to the national courts. In your consciences, do you not think that the same Constitution deems the sentence of death and the infliction of death on a foreign soldier, for obeying the order of his sovereign, and who pleads that order, — the responsibility of his government and the benignity and manliness of the laws of nations for his life, to be at least equally likely to involve national peace?

I have thus far, Mr. President, attempted no more than to raise a presumption, that under some clause or -a priori, other of the article establishing the judicial power, this jurisdiction over State prosecutions of foreigners resident abroad, and depending on the laws of nations, will be found to be communicated. Let me now approach the question, under which clause it is communicated. The whole grant reads thus:

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of dif