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One word only, therefore, upon an objection or two of the honorable Senator, not yet particularly adverted to, and I relieve your attention.

It has been said that, even if the Constitution or this bill makes the laws of nations the law of the United States, the State courts may be relied on to administer them; because the laws of the United States are the laws of the separate States also. But is not the Constitution, are not the treaties, is not every law of the United States, the supreme law of the States; and yet, does not the Constitution expressly extend your judicial power to all of them?

The Senator has said, too, that to give this jurisdiction to the national courts is to interpolate, after the words of the Constitution, "the judicial power shall extend to all cases arising under this Constitution, the laws of the United States, and treaties made under their authority," these words, "and the laws of nations;" and that is to change the Constitution. By no means, Sir. That would indeed be to change the Constitution; for, undoubtedly, not every case arising under the laws of nations is within your jurisdiction. Such there are, many such, between citizens of the same State, on policies of insurance, for example; cases turning wholly on the application of that code to breaches of blockade, neutral conduct and liabilities, the character and the consequences of illicit trade, and the like. But it is not of such cases, between such parties, that you can give jurisdiction to the national tribunals. It is of such only as, in their prosecution or their defence, involve, depend on, and accomplish, some power conferred, or some duty imposed, by the Constitution. The portion of the great and entire international code which you can adopt, and can administer, is that which regulates our intercourse with, and our duties toward, other nations, their subjects and their governments. That portion only you adopt and administer by this bill. You do this as a means of exerting some power conferred, or performing some duty imposed, by the Constitution. You do it in execution of the Constitution. All the cases which arise, under this part of this bill, are cases under the laws of nations, indeed, in one sense; but, in a true, large, and ultimate sense, they are cases under the Constitution, too, and a law of the United States "made in pursuance thereof."

In truth, the title, right, privilege, or exemption, supposed by this bill to be set up and claimed under the laws of nations, is really set up or claimed under the Constitution, and a constitutional statute; and I have no doubt at all, that, within the twenty-fifth section of the Judiciary Act, a decision against such claim or exemption, in the highest court of a State, could now be removed by writ of error to the Supreme National Court. There is no enlargement, then, and no change of the judicial power of the Constitution by this bill. We interpolate nothing. We just make a constitutional statute, adopting a part of the law of nations, and then, within the precise words, and the necessary and obvious spirit of the Constitution, we give to your tribunals the cases arising under it.

The bill under consideration provides for the interposition of the national courts by habeas corpus, where the foreign subject is imprisoned for acts done under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the law of nations, or under the commission or order or sanction of any foreign State or sovereignty, or under color thereof." The description of cases last mentioned in this enumeration, cases arising under the commission, order, or sanction of any foreign State or sovereignty, — arise, like the former, under the laws of nations. They are only one class, or one illustration, of cases so arising. The effect which is to be allowed to such commission, order, or sanction, for the protection and defence of a foreigner imprisoned under the authority of the State courts, depends on that code alone; and perhaps there was no urgent necessity, in the construction of this bill, to single out these, for enumeration, rather than any other cases to which that code applies, and over which, of course, this jurisdiction should be extended. And yet it may have been proper to do so, because, more almost than any other, they exemplify the grounds and the importance of a national, legislative, and judicial control, to the extent proposed by the bill. Take the case of The Caroline and of McLeod, for an instance, and see how conclusively it refutes that large Staterights doctrine which has been contended for here, and now, as well as elsewhere, and formerly the doctrine of a right in the States, as against the general government, to try, in their own courts, and under their own laws, the individual

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actors in such a transaction, and overruling the plea of the laws of nations, to execute them for murder against the form of the statute of the State. Sir, without repeating any of the general reasoning, on which I have detained you too long already, and without troubling you further on the particular character of this bill, I submit that a State right to this extent cannot be maintained for a moment.

Of your general jurisdiction over such a transaction, your jurisdiction to some extent, and for some purposes, there is of course no doubt. That it was an entry upon our territory by the government of Great Britain; that it was a wrongful entry upon a neutral territory; that this constitutes an offence by a nation against a nation, against the Union under the general government, against this nation; that it was attended and was consummated by the instrumentality of war, — by organized, armed men, by the application of military force, by terror, and by the shedding of blood-all this we all admit and all assert, the former Secretary of State as well as the present, the last administration as well as this, all who have debated the American side of the question, in and out of congress, from the burning of The Caroline to this hour. And this we assert, on the most satisfactory evidence for the facts, and the most conclusive and most venerable authority for the law.

It follows, of course, that of this transaction, as a national wrong against this nation, the general government has general jurisdiction to some extent and for some purposes. This also we all admit. In the exercise of that acknowledged and undoubted jurisdiction, Mr. Forsyth, Mr. Stevenson, and Mr. Webster, have successively complained of it, and demanded redress. In the exercise of that jurisdiction, negotiations are at this moment pending between the two national governments, with the acquiescence of everybody. The actor being a nation; the recipient of the wrong a nation; the means of redress and of adjustment, reprisals, declared war, negotiation, being all national, and such as you alone can employ, this general jurisdiction for the purposes of diplomacy is conceded as a thing of course.

Observe, too, under another view, how comprehensive and how controlling is your general legislative, as well as diplo

matic jurisdiction, over such transactions. You do not doubt that congress may pass a law declaring that prisoners taken during an actual war within a State shall be deemed subject to the laws of nations, shall be placed in the custody of the executive officers of the United States, and that the President may provide for their safe-keeping, support, and exchange. Such, in effect, was the legislation of congress in 1812, by the acts of June 26, sec. 7, and July 6. You deduce your power to do this from the powers to declare war and to conclude peace, both belonging to the general government, the first to you and the other to the executive.

Well, Sir, have you not just as much power to declare that such acts as the burning of The Caroline are acts of war, unlawful, informal, insolemn, but acts of war; that they are acts of war by the government of Great Britain upon the United States; that, as such, the laws of nations become applicable to them; and that the liabilities and immunities of the individual actors in particular must be determined by that code? Much edifying discussion there has been, in and out of congress, much expenditure of learning and logic, to show that a State court of justice could not recognize that transaction as an act of war. But has anybody denied that congress might declare it and all similar transactions to be acts of war? Pray, Sir, has not this government, and has not that branch of this government to which it belongs to declare war, the power to declare what, in the judgment of this nation, is the true character of a particular wrong done by another nation to this? Has not the legislature, which may declare that a particular act of a foreign government justifies and requires an open war, the right to pronounce that the particular act itself assumed the nature and the guilt of war, and was war while it continued, as far as it extended, and in what it did? I believe nobody will doubt this. Then you may pass a law to-day declaring that exactly such enterprises as that against The Caroline are and shall be deemed and taken to be acts of war, unlawful, informal, insolemn, by the government which perpetrates them against the United States. You may, therefore, as you did in 1812, declare that the individual actors, if taken, shall be prisoners of war, subjected to the laws of nations, held in custody by the general government, and exchanged by the executive.

Well, now, Sir, setting out with this incontestable, general, diplomatic, and legislative jurisdiction, and these plain powers of this government over such transactions, is it not perfectly palpable that you cannot stop short of the conclusion that you have a general jurisdiction over all parts of them, including the case of the individual actors, which is repugnant altogether and fatal to the claim of State power, which I am now examining? The truth seems to be that these transactions, and such as these, are entire transactions. They are in their nature, and from the necessity of the case, indivisible. They are wholly within the domain of national diplomacy, for example, as against the State claim of jurisdiction, or they are not within it at all. You admit that this government may adjust the transaction, as a governmental act of England, by negotiation. Under its power to make treaties, to conclude peace, to regulate foreign intercourse, you admit that it may and must do this. But if it can do this, it can adjust the case of the individual actors, too. Nobody can so much as conceive a theory of the extent and nature of your treaty-making functions, according to which they should include one of these powers and not include the other. Why, Sir, one of the powers would be totally useless without the other. Can you amicably and honorably adjust the controversy with the government which commanded, while you declare your purpose, or a State declares its purpose, to hang the servant who obeyed? Will the foreign nation settle for itself, and leave its soldiers to be punished for murder? To render the treaty-making capacity of the slightest value, then, it must cover the whole of the ground. And so it must in every possible view. By immemorial usage it is the means, it is the agent, by which to adjust the case of such of the subjects of one nation as become implicated in its foreign relations, and obnoxious to the complaints of another nation. Then you may wield it for that purpose and to that extent. By the universal understanding of the world, according to all acknowledged principles of international law, in the nature of things, in reason, in justice, the case of a nation which does a wrong to another through the instrumentality of its servants, and the case of the servants themselves, the national and the individual offence and responsibility fall within the cognizance of one and the same code; constitute one complex but insepa

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