were reducing the sovereignty of the States to establish yours. They were borrowing from these dispersed, lesser, and golden urns, or rather from the great primal source, the people, light and fire for a central sun. Have you, then, any insuperable difficulty in supposing, when you find them adopting this principle of policy upon the subject of national jurisdiction, that, to the whole extent of the principle, they meant to abridge the original sovereignty of the States? Show me that criminal trials do not involve national peace, and you take them out of its operation. But if you cannot do this, then, whether more or less essential to State sovereignty, the principle transfers them to this government.

Let me add, Sir,—although the argument of the honorable chairman of the committee upon this subject left little more to be desired, that I know of nothing in reason, or in the Constitution, to warrant the imagination that you invade the sovereignty of the States any more, when you take from them the trial of crimes, than when you take from them the trial of contracts. Gentlemen, with great serenity, allow the federal jurisdiction over a suit by a citizen against an alien, on a five hundred dollar bill of exchange payable here, depending wholly on the law of the State; but the trial for his life, of a foreign soldier, wearing the uniform, receiving the pay, obeying the command of his sovereign, and cloven down and captured in his actual service; who claims the protection of the ancient and universal law of the Christian world; whose cause is his country's cause; whose security his country guarantees; whose blood his country must avenge, or be a by-word and a hissing among the nations such, so grand, so solemn and so eventful a State prosecution, they say you cannot try, even on the single point contemplated by the bill, because it would be to invade the sovereignty of the States. Pray, Sir, is it not just as much invaded in one case as in the other? Is it not just as much an act, or an attribute of sovereignty, as grand, as beneficent, as beautiful, to sit in the great halls of national civil justice, with eyes averted, the golden scales suspended aloft, and administer that justice "freely and without price, completely and without any denial, promptly and without delay, conformably to the laws," as it is to punish crime? Is it only when a State is in anger; is it only when she is avenging a

wrong directly to herself, that she is a sovereign, and acting as a sovereign? By what tests, by what well-compounded instrumentality do you undertake thus to distinguish between one ray, or one beam and another of all those which blend and blaze in the wide rainbow arch of sovereign power?

The Senator from Georgia, however, suggested what I deem a much more formidable objection to this interpretation of the word controversies, and that is the startling extent of the consequences which would flow from it. It might follow, in the strong language of Luther Martin, which I have just read to you," that the national courts have the sole right to inquire concerning, and try, every offence, from the lowest to the highest, committed by the citizens of any other State, or of a foreign nation, against the laws of this State within its territory.

I recognize the force of the objection. But is it certain that the Constitution did not, however, mean to commit even this power to a sound legislative discretion? The Constitution, designed to create a national commonwealth which should be immortal, and looking forward to those possible varieties of untried national being through which it might pass, to enable you to preserve peace with foreign governments, and peace among yourselves, bestows upon you perhaps the power to clothe your courts with even this expansion of jurisdiction. But it does not command you to exert it at once, or to exert it at all. It intrusts it to your discretion. Observe the change of language in these successive clauses of this article. "The judicial power shall extend to all cases arising under the Constitution, laws, or treaties of the United States; " but it shall extend "to controversies between the enumerated parties; not saying all, significantly, perhaps, dropping that word; thus leaving you the power to extend it to all, or to part, and to draw your line of jurisdiction where and how you please. I adopt this conjecture from the opinion of Mr. Justice Story in the case of Martin v. Hunter's lessee, (Wheat. 335-6.)

In the exercise of this discretion accordingly, the judiciary act gives jurisdiction to the national tribunals of such civil suits only against aliens as ascend to a certain degree of importance. Is there any more difficulty in the exercise of the same discretion, in extending the jurisdiction of the same tri

bunals over criminal prosecutions by the States to the cases, and for the purpose, contemplated by this bill? Is there any difficulty in cases where a foreigner, accused of crime, admits or postpones the denial of the facts, and interposes a special claim of immunity, founded on the law of nations, in permitting the national courts to pronounce solely upon that single preliminary or collateral claim of immunity? The general case they scarcely may be said to try at all. They do not assume to interpret and administer the criminal, municipal law of a State. They only inquire and decide, whether that law is not, under the particular circumstances, superseded, displaced, overridden, by the universal code of civilization. To the extent of that inquiry and that decision, the case becomes a controversy on a collateral, or rather a special, matter; and, to that extent, the jurisdiction of the national tribunals might seem to be safe, salutary, and within this clause of the Constitution. So far only, be it observed, does the bill assume to go.

It has been suggested, as another objection to this interpretation of the word controversies, that it would give to the general government, to some extent, the administration of the criminal jurisprudence of the States; that this involves a solecism, and a dangerous solecism, too; that the government which tries must necessarily have the power to pardon; and, of course, the President would become armed with the power of taking from the States their means of punishing crimes against their own laws. Confusion and collision, it is argued, must inevitably be the consequence.

I agree, undoubtedly, Sir, that this consideration is of weight to induce a sparing, and unfrequent and qualified exercise of this jurisdiction, ratione personarum. Limited, however, to a mere inquiry how far the laws of nations withdraw the foreigner, in the particular case, from the condition of general liability to the local criminal code, I see nothing so very formidable in the jurisdiction. Certainly, it carries to the national executive no power to pardon. This is a jurisdiction, so far as this clause is concerned, founded on the character of the parties, not on the nature of the cause. It is a jurisdiction given by the Constitution to the judiciary only. It is a jurisdiction to that department to try, to acquit, or convict and sentence, according to a prescribed law.

The power of pardon is a strict executive power; is totally unaffected by this grant of judicial power, and remains unimpaired, uncontrolled, in the executive of the State. The jurisdiction which is founded on the nature of the cause, rests, I need not say, on different principles altogether; and to cases within those principles the national executive may hold a very different relation.

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But I am glad to arrive, at last, at the true ground on which your constitutional competence to pass this bill is to be asserted. The cases embraced in it are, all of them, cases arising under the Constitution and laws of the United States," and therefore expressly within the national judicial power. They are such, for the general reason that they involve, accomplish, and depend on the interpretation and administration of certain constitutional powers and duties, and certain laws of this government.

The bill before you is, in form, a bill to give jurisdiction, in a certain mode, of a certain description of cases, to the national courts. Like every other bill, however, which assumes to give jurisdiction, it assumes to do, and it does, another thing also. It does two things: It first adopts, or makes a law to be administered, and then it designates a tribunal to administer it; it first makes a law, and then it makes a court; it first adopts the law of nations as the law to be administered, and then commits the administration of that law to the national judiciary.

I think, Sir, it will facilitate the investigation in which we are engaged, to separate these two objects of the bill, and to take them up one at a time. Let us look at it then, first, as a bill making law, and then as a bill conferring jurisdiction.

In the first place, then, as a law-making bill. What does it do; and is it, in that view of it, constitutional ?

Well, then, Sir, the bill, in this aspect, does, by inevitable implication, exactly this: It declares, in effect, and by inevitable implication, that, whereas, in the intercourse of independent commonwealths, there are cases in which the rights and liabilities of subjects of one government, domiciled abroad, for acts done within the territory of another, depend, according to the laws of nations, upon the laws of nations, administered by the injured government, and overriding and displacing the mere

municipal and local code; that, therefore, in such cases, the laws of nations shall be applied, shall form the rule of determination, and shall relieve from restraint the alien imprisoned in violation of them. This, I think, is exactly the effect of the bill, as a bill making a law to be administered. If, by the laws of nations, as understood and observed among independent, Christian, and civilized commonwealths, there are cases where the liabilities of the citizens of one commonwealth, and resident there, for acts done in the country of another, depend on, and ought to be tried by, the laws of nations, then, in such cases, judicially ascertained to exist, the laws of nations shall be the code of trial; and the courts of the injured commonwealth shall interpret and administer that code accordingly, to the extent of affording relief from restraint. The bill recites and enacts all this by implication. It does so by directing the discharge of the party, if, by the law of nations, the courts find him entitled to discharge. What the cases are in which the law of nations thus interposes itself; what are the cases in which it rescues the party from the mere municipal law, it does not attempt to define. But where the judicial power declares the case to exist, according to the law of nations, that law is to govern that case.

And now the question is, whether it is competent to congress thus to adopt and to provide for the administration of the law of nations, as part of the law of the United States, in cases affecting the security of foreigners domiciled abroad, and through them affecting our foreign relations and foreign intercourse? I submit, then, Sir, that this is clearly within your constitutional competence.

I deduce your authority, first, from a general view of the powers bestowed by the Constitution, and, secondly, from certain particular provisions.

In the first place, congress is expressly authorized" to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." (Constitution, art. 1, sec. 8, clause 17.)

You may make, then, all laws necessary and proper for executing all the powers vested in the general government,