held fast in the worst of times, and at all times; under all administrations; whatever party was uppermost; with the approbation of the people, of the States, and, I was happy yesterday to hear, of the Senator from Pennsylvania. Permit me to say, Sir, that when we shall be driven or seduced to let go our hold on this, we are lost indeed. The only novelty in this part of the bill is a change of the stage of the cause, in which the controlling interposition of the national courts is to be put forth; but, in point of jurisdictional principle, there is nothing new, and nothing to be defended. To much the larger part of the Senator's speech, therefore, I attempt no reply.

Addressing myself, then, to that provision of the bill which gives to the national tribunals qualified jurisdiction of criminal causes, commenced in State courts and under State authority, against foreigners, the subjects of a foreign government, and domiciled abroad, who defend themselves upon the laws of nations, I submit that you have the constitutional power to pass it, and that it is in a high degree expedient to do so.

You have the constitutional power. The cases to which this provision applies are either, in the language of the second section of the third article of the Constitution, "cases arising under the Constitution and the laws of the United States; or they are "controversies between a State and foreign citizens or subjects;" or they are both; and either way, to the extent contemplated by the bill, you may commit them to the national judiciary.

I say to the extent contemplated by the bill; and that is a very limited extent. The national tribunals interpose so far only as to determine whether the laws of nations entitle the prisoner to his discharge. If they do, he is discharged; if not, whatever the evidence or the deficiency of evidence against him, he is remanded to the court of the State for general trial. The jurisdiction given by this provision of the bill, therefore, is of a single point, the relevancy and the sufficiency of the laws of nations to rescue the party and the act from the operation of the mere municipal and local law.

Before advancing to the inquiry, by what precise clause and denomination this jurisdiction is communicated, permit me to premise a preliminary and preparatory suggestion; and that

is, that one of the grand objects, which we certainly know that the framers of the Constitution had in view in the construction of the judicial department, as well as throughout the whole of their vast work, was such, and some of the acknowledged powers of the national judiciary are such, as to afford a moral certainty, a priori, that this particular and limited jurisdiction over prosecutions begun in the State courts against foreigners domiciled and owing allegiance abroad, and pleading the laws of nations in their defence, must, under some clause, and by some denomination or other, be found to be also given. The Constitution gives so much jurisdiction, and on such policy, to the national courts, that it must have given this too. It goes so far, on such reason, that it must, as a systematic organization of government, resting upon any principle at all, be found to go the whole length of this bill. Why, Sir, advert to this single consideration: If the State of New York, or any other State, or any citizen of any State, has the most frivolous civil lawsuit with a subject of England resident in Canada, the Constitution gives the trial of it to the federal courts. If the owner of The Caroline, for example, should bring his action of trover against the persons who carried off and burned her; or if the State itself, happening to be the proprietor of the wharf where she lay, should sue them in trespass quare clausum fregit, for breaking and entering its close, and subverting the soil, by the Constitution the case may be brought into your tribunals. These suits, out of all manner of doubt, and by the admission of everybody, are "controversies between a State, or its citizens, and foreign citizens or subjects; to which we know the national judicial power, by the express terms of the Constitution, is extended.

And now, sir, do you think that, when we come more critically to analyze the article by which the judicial department is constructed, we shall find that the Constitution has done so capricious, inconsistent, not to say incomprehensible and absurd a thing, as to have given, with so much solicitude, to your courts, jurisdiction over such disputes as these, and yet to have overlooked altogether the weightier matters of this bill? Why, what is the policy on which you have, and may assert, jurisdiction of these small civil suits against aliens? Confessedly and notoriously this only to preserve, undis

turbed, harmonious intercourse with the rest of the world. Presuming, not that the State courts, or the State judges, are cannibals, as the Senator from Pennsylvania arraigns this bill for presuming them to be-not so-but presuming, whether right or wrong I do not say, that they, by possibility, may be somewhat less certain to be impartial in a case where their own States, or their own neighbors, are parties on one side, and a desolate stranger on the other; presuming that they may be more exposed, somewhat, to be disturbed and darkened by sympathy with local passion and excitation, with the pride, and anger, and short-lived and circumscribed emotions that convulse a State, without sending a pulsation beyond its borders, as a smaller water may be moved through all its depths and extent by a breeze which the main sea will not feel; presuming that they may be, by possibility, less profoundly impressed with the responsibilities attendant upon bringing on, by a judicial decision, a war which their State would not have to sustain, and which the nation would; proceeding upon the obvious principle of common sense and common justice, that the government which must answer, by its treasure and its blood, for a verdict or a judgment, ought to have the right to give the verdict and render the judgment -upon this policy

and on these reasons it was that the Constitution has withdrawn, has enabled Congress to withdraw, from the State courts and give to yours the ultimate determination of this kind of case against this kind of party. Although no foreign government has anything to do with the matter, nor any domestic government, State or national, has anything to do with it; although the decision may depend wholly upon the local law of the State, and involve no immediate consequence beyond the payment of an inconsiderable execution, yet, for the sake of preserving the public peace, and because the denial of civil justice to a subject of a foreign nation may possibly bring on collision with that nation, with a wise and decisive forecast, it has given this unquestionable expansion to your judicial power. And now, I repeat it, can the Constitution, after all this, have done so fitful, capricious, timid, and inconsistent a thing as to leave a question on the life of a man — the life of a soldier, coming into your territory by the command, and to do the will of his sovereign; in a case where a foreign

government is the real actor on one side, and your own national government the recipient of wrong on the other—a case which is to be decided, not by the smaller reason of local law, but by the code which governs the nations, and where the inevitable consequences of conviction and execution will be, not the payment of a trifling sum of money, but a war, which may encircle and shake the globe to leave such a question as this, exclusively or concurrently, to those very tribunals which it authorizes you to prevent from rendering a judgment against a foreigner on a fifty-dollar promissory note? Is this great device of wisdom and policy, the Constitution, so little systematic and consistent; so untrue to itself; such a jumble of incongruities, and of the discordant seminal principles of ill-assorted things as this comes to ?

I say then, Sir, that the Constitution has gone so far in its grant of federal jurisdiction, and upon such policy, that there is a sound, not to say an irresistible presumption, a priori, that we shall find, in some clause, a grant of the jurisdiction asserted by this bill.

I attach, Mr. President, so much importance to this preliminary consideration that one great object in the view of the framers of the Constitution, in the organization of the judicial department as well as of the entire scheme of national government, and in the conception of the Union itself, was to clothe this government with the means of preserving national peace, by holding in its hands the determination of all judicial questions affecting its foreign relations as a government to other governments; it affords such a valuable general principle by which to interpret the particular clauses of the instrument, and answers in advance so much of the argument of the Senator from Pennsylvania, that, before proceeding to an inspection of these clauses, I beg to dwell a little longer on it. Go back to the birth-time of the Constitution, and ask its authors what they expected of its judicial department. The Senator from Pennsylvania inquires if our fathers dreamed of such a grant of federal jurisdiction as this? Sir, what they dreamed of I know not; that was not a race or an age of dreaming men; but of heroical sentiments; far, large, and practical aims; profound thoughts, and great deeds; and what they thought, and what they did, we do know, and may usefully meditate.

Let me read first a passage from "The Federalist;" the same which was read, I believe, by the Senator from Georgia [Mr. Berrien] in his able opening exposition and defence of the bill; but it will bear repetition:

"It seems scarcely to admit of controversy, that the judiciary authority of the Union ought to extend to these several descriptions of cases: "4th. To all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th. To all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiassed." "The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign Powers for the conduct of its members; and the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not the less essential to the preservation of the public faith than to the security of the public tranquillity. A distinction may perhaps be imagined, between cases arising upon treaties and the laws of nations, and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction; the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, when the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty, or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the controversies in which foreigners are parties involves national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals." Federalist, No. 80.

I have not been deterred from presenting this evidence of the objects for which the judicial department was constructed, by the imputation of centralism, or consolidationism, or federalism, so liberally heaped upon this bill, and its policy and its aims, by the Senator from Pennsylvania. Upon the value of this great contemporaneous commentary, as evidence of the contents of the Constitution, I have not supposed there were two opinions. In the history of controversy, in the history of political literature, and of all literature, I know of no writing