of the sun, and yet given you no power to keep the safe and open highway of heaven,-shunning the serpent constellation on the one hand, and the altar on the other?

I submit, then, Sir, that the case stands thus clear and simple. You may pass all laws necessary and proper to execute any constitutional power, or perform any constitutional duty of the general government. Among those powers and duties is that of preserving peace, by observing international law. Then you have the power to secure that observance, and of course the power to pass this part of this bill, adopting and executing it so far as it regulates foreign inter

course.

The Senator from Pennsylvania has told you, indeed, that the States are bound to observe the laws of nations; and therefore, of course, that you have not the power to pass a law, of your own, like this bill, providing for their adoption and administration. But is this so? In the first place, supposing the States are thus bound; it does not prove that you have not the power for which I am contending. So are the States bound to obey the Constitution, and the treaties, and the laws of the United States; but have you, therefore, not the power to provide, by your own direct act, for their administration and their execution? Do you, or need you, refer it to the good pleasure of the States, whether the Constitution, laws, and treaties are observed or not? Does their duty of obedience take away your power of administration?

But how far or to what useful purpose in argument is it true at all, that the States are bound to obey the laws of nations? There is a loose and inadequate sense, no doubt, in which the States, and every individual member of every State, and of every civilized commonwealth, may be said to be so bound. But are they bound as you are; in the same sense; to the same extent; under the same responsibilities; with the same consequences? No indeed, Sir. Can they answer for a violation of them by war? No. Can they compensate for such violation by treaty? No. Can they unite with other nations in defining their principles; declaring the rights secured; and the wrongs forbidden by them; in varying and accommodating them from age to age so as to keep pace with the ebb and flow of human affairs; and the general,

though slow and interrupted, advancement of civilization? No. Are they bound by them in any other sense than every merchant and every sailor in the world is bound by them? Is not the law of nations a law for nations? Are not its subjects independent commonwealths? Is not the absolute equality of all the nations to whom it extends its very first principle? May you not just as well say that the States are bound to preserve national peace ? So in one sense they are; so are we all. But is there not a peculiar and constitutional sense in which that is the duty of this government alone?

I cannot think, then, Sir, that the reasoning on which I have deduced your power to provide for adopting and administering the laws of nations, from your general constitutional powers and duties, is answered by this position of the learned and honorable Senator.

Let me say, before leaving this branch of the discussion, that the writers of "The Federalist," in the passage from the eightieth number of that work which I just now read, assume it as clear and conceded by the opponents of the Constitution, that causes, in which citizens of other countries are concerned, and which arise upon the laws of nations, will be cognizable by the national judiciary. They do not, therefore, discuss that proposition at all, but, taking it for granted, proceed to argue that all causes affecting foreigners, although not arising upon the laws of nations, should be committed to the same judiciary.

But see now if the power may not be deduced from specific provisions of the Constitution. I have remarked that, everywhere, in numerous provisions, the Constitution assumes that you observe the laws of nations. In making war, concluding peace, in trade, in negotiation, in all your intercourse with the world, it supposes it. But look a little more nearly. There is the treaty-making power. The general government, the executive of that government, may make treaties, and, when made, they are supreme law; displacing and overriding the State law wherever it stands in their way; and they are expressly committed to the administration, exclusively so, in the last resort, of the national courts. Now, without attempting to define the exact and whole extent of this power, and to enumerate all things that it can do, and that it cannot, I submit to you that it is perfectly clear that it enables the

executive of this government to do, by a treaty, exactly what we seek to do by the law-making part of this bill; that is, to engage the faith and honor of this nation, that, in all cases in which, by the laws of nations, the rights and liabilities of foreigners, subjects of other governments, domiciled abroad, depend not on the municipal law, but on the laws of nations, mitigating and superseding it, that those laws shall form the code of trial. Does any senator deny the power of the executive to make such a treaty? Is there a particle of doubt that the treaty might even be made to go farther, and define the cases which the laws of nations should govern, dealing with just such cases as McLeod's, for example, and formally, and in terms, declaring, not only that such a case should be governed by the laws of nations, but that, by that code, he ought to be released; thus not only applying, but declaring the law? I should hardly be excused for debating this proposition, or citing an authority for it. In the case of Holmes v. Jennison, in 14 Pet. S. J. C. U. S. 569, the chief justice observes, "The power to make treaties is given by the Constitution in general terms without any description of the objects intended to be embraced by it; and consequently it was designed to include all those subjects which, in the ordinary intercourse of nations, have usually been made subjects of negotiation and treaty, which are consistent with the nature of our institutions and the distributions of powers between the general and State governments. Without attempting to define the exact limits of the treaty-making power, or to enumerate the subjects intended to be included in it, it may safely be assumed that the recognition and enforcement of the principles of public law, being one of the ordinary subjects of treaties, were necessarily included in the power conferred on the general government." And Mr. Justice Barber, dissenting from the chief justice, and those learned members of the bench who concurred with him, on the general question in the case, however, distinctly admits "that as, by the usage of nations as well as by the practice of the United States, the surrender of fugitives is deemed to be a proper subject of a treaty; that, therefore, it is competent to the president and senate to make treaties in relation to that subject thus extending the treaty-making power to the limit of known and ordinary national usage. (S. C. p. 589.)

Everything, then, which this bill seeks to do, the general government might do by treaty. So much is certain. I do not say that it follows that you can therefore do the same thing by a law. That depends not on the comparative powers of the State and national governments, but on the distribution of federal power itself among the departments. But the State-right argument against the bill is forever silenced by this consideration. How can it be pretended, as we have heard it urged, that it plunders the States of that poor, shrunken residue of sovereignty which the Constitution secured to them; that it wrests an inalienable as well as a favorite jurisdiction out of their hands; robbing them of their proud and cherished privilege of vindicating the supremacy of their own criminal law, when, beyond a shadow of doubt, there is a department of the general government that can rightfully do the whole work of the bill in a moment?

The

Into the question, whether we may not do by law what the executive could do by treaty, I do not propose to enter. subject is discussed somewhat by Mr. Madison, in the papers under the signature of Helvidius, in reply to Pacificus, by General Hamilton; and was very elaborately debated by the House of Representatives in 1815, on a bill to carry into effect a commercial convention with Great Britain. My general opinion is, that within our own territory, in so far as direct action on our own citizens and others within it is involved, we may do all things, for the preservation of national peace, by law, that we could do by treaty. If, with a view to the preservation of peace, we can incorporate the laws of nations into the laws of the United States for the government of our own territory by treaty, then, with a view to the same end, we can do it by law. The treaty-making function can only be exerted to execute some power or perform some duty of the Constitution; and the law-making function, infra territorially, can be exerted for such purpose, and with similar efficacy.

But there is another provision of the Constitution which seems to put an end to this question. Congress is expressly authorized "to define and punish offences against the laws of nations." Pause for a moment on this, and see how much more power it gives you than you attempt to exert in this

bill. The single question we are discussing is, whether we have not the constitutional power to adopt and execute the laws of nations, -as and for our own law, in so far as law,-in they protect foreigners, under special circumstances, from imprisonment in violation of them, by the municipal law of a State, for acts done within our territory. This bill, to that extent, adopts those laws, treats such imprisonment as an offence against them, and relieves from it accordingly.

Now, I have to say that this provision seems to me forever to settle the question. It commits to Congress the exclusive and the entire administration of the whole law of nations as a criminal code, in just so many words. It authorizes you to pass a statute which shall formally declare the laws of nations to be the law of the United States, and shall formally prohibit all offences against them, which shall enumerate and classify and define every one of those offences; shall relieve and protect the person, or the right against which the offence is committed, and shall punish the offender. Against the provisions of such a statute, of course, no law of a State, and no judicial decision of a State could be set up. It becomes, by express terms of the Constitution, supreme law. If an act, by whomsoever done or authorized, is an offence against the law of nations, you may prohibit it. Whether an act be such offence or not depends, not on the perhaps conflicting definitions of twenty-six States, but on your definition. it shall be relieved against; how it shall be punished; whether it shall be relieved against or punished at all, depends not upon the perhaps conflicting wills of twenty-six States, but on your will. If a doubt is moved whether you have not declared an act to be an offence against the laws of nations which was no such offence, thus usurping upon the municipal jurisprudence and legislation of a State, this, like every other judicial question on the validity of a law of the United States, must be determined by the national judiciary.

How

Such is the palpable extent and sense of this provision. See, then, in the first place, how completely it answers the argument, that the general government is bound to presume that the States will execute the laws of nations, and to rely upon them for it accordingly; that their relations to these laws are the same with yours; and that though responsible