for their violation, you have no adequate and supreme power to secure their observance. Sir, this provision was inserted, in part, to enable you to prevent those violations of these laws by everybody, States and persons, which might give just offence to the rest of the world. Speaking of this very subject, Mr. Madison says, in a paper of "The Federalist,” which I have before referred to-the forty-second number—“these articles" (the articles of confederation) "contain no provision for the case of offences against the laws of nations, and consequently leave it in the power of any indiscreet member to embroil the confederacy with foreign nations." It was inserted to enable you to preserve peace by keeping the law to which as a nation the Constitution had subjected you, and for whose just and uniform administration the world was authorized to hold you to answer.

But I would have you remark a little more particularly how fully this provision authorizes you to do all, and a great deal more than all, which is attempted by this bill.

You

might, as I have said, enumerate the cases, in which the imprisonment, under the authority of a State, of a foreign subject, domiciled abroad and pleading the laws of nations, would be an offence against those laws; and you might provide both for punishing and for relieving from that imprisonment. You might, for instance, deal with such a transaction as that of the burning of The Caroline. You might declare it an offence against the laws of nations; but the individual actors in the business the soldier, the sailor, whose government set him the inglorious and perilous task of midnight war- these actors you might declare to be clothed with perfect immunity by that same manly and just code; and that therefore to imprison them, as for a breach of municipal law, was itself an offence against that code for which you might relieve and for which you might punish. All this you might do, because all this is but a defining and punishing of offences against the law of nations, which is one of your enumerated powers. If it were doubted whether such an imprisonment were properly declared, in the cases specified, to be an offence against these laws, the national judiciary is appointed by the Constitution the tribunal to resolve the doubt.

Now, Sir, how far within these limits of your undoubted

power is the whole action of this bill! Instead of enumerating the cases in which the imprisonment of a foreigner by the authority of a State is an offence against the laws of nations, you refer it at once to the judicial power to ascertain whether a given case, judicially presented, is such an one or not. Instead of providing for punishing, as well as for relieving from such imprisonment, you, with a wise abstemiousness, provide for relieving from it only. And will anybody say that the proposed law is void, because it does not go far enough? Does not the Constitution commit it to a sound legislative discretion to determine whether you shall define an offence, or whether you shall adopt the definition of the laws of nations, and refer it to the judicial power to collect and pronounce that definition? By the ninth section of the judiciary act, concurrent jurisdiction is committed to the district courts "of all causes where an alien sues for a tort only in violation of the law of nations." Is this void, because, instead of enumerating and defining those torts, the courts are authorized to pronounce, by recurrence to that law, whether in a given case such an one has been committed? The act of congress of 1819, v. 6, p. 489, sec. 5, enacts that if any person shall on the high seas commit the crime of piracy, as defined by the law of nations, he shall suffer death; and yet it was holden in the case of The United States v. Smith, (5 Wheaton, 153,) that this was a constitutional exercise of the power of congress to define and punish piracy.

Is it not intrusted also to a sound legislative discretion to say whether it will do more than relieve the foreign subject from the illegal punishment? Is there any compulsory duty to go further and incur the odium of punishing the native offender also? Is there any obligation on you to do all in one bill? You might as well say the judiciary act is void, because it does not exhaust the whole constitutional grant of federal jurisdiction.

I cannot doubt, then, Mr. President, on a view of the general structure, objects, and powers of the Constitution, and on a narrower inspection of its particular provisions, that you may constitutionally pass this bill so far as it is a law-making bill. You may adopt and provide for an administration of the laws of nations, so far as they exempt and relieve foreign sub

jects, domiciled abroad, from the imprisonment or other punishment, inflicted under municipal law, in violation of their principles and their policy.

The next question is, whether jurisdiction of cases under this bill-the judicial administration and execution of the bill -may be given to the national courts?

Sir, I suppose this to be no question at all.

In the first place, cases under this bill-cases under the laws of nations, as adopted by this bill - become instantly cases arising, in the very terms of the Constitution, "under a law of the United States," to which your judicial power is expressly extended. They arise under this very statute. This statute, this formal act of your legislative power, makes, by adoption, the law which tries them. I subject you to this dilemma. If the Constitution, by direct operation, makes the laws of nations your law, then these cases arise under the Constitution. If by this statute they are made such, then the cases arise under a law of the United States; and either way are unquestionably within your judicial power.

Certainly these cases do not the less strictly and the less properly arise under a law of the United States, that you adopt the laws of nations by a general reference and a general denomination. If you assumed, by this statute, to codify that venerable and ample jurisprudence, to define and classify the offences which it prohibits, and to anticipate and provide for all the cases in which it may interpose to control the narrow technicalities, and unyielding, conventional, and arbitrary rules of municipal law, then all would admit, I suppose, that the very cases contemplated in the bill, as now it is framed, would arise under a law of the United States, and go constitutionally to the national judiciary. But it obviously comes exactly to the same thing, when you incorporate the international law into your own by general reference. So you did by the fifth section of the act of congress of 1819, which I have just read to you; and yet, an indictment on that section, is it not upon, and should it not conclude against the form of, the statute of the United States?

Since, then, Sir, in a trial under this act, the defendant sets up a right, privilege, or exemption, secured him by a statute of congress, within the words of the Constitution, and the

exposition of its meaning by the twenty-fifth section of the judiciary act, the case arises under a law of the United States, and your jurisdiction is perfect.

But in a more general view, Sir, this statute is a declaration, by the legislative power of this government, constitutionally put forth, that the laws of nations, to a certain extent, shall be administered in the United States. It follows, as a matter of course, under our system, that the national tribunals are to execute that declaration, and, in the last resort, to do so exclusively.

Is it not, as Chief Justice Marshall, in the case of Cohens v. The State of Virginia, pronounced it, as every elementary writer on government has pronounced it, an axiom, that the judicial power, in so far as judicial questions, judicial cases, can arise, is coextensive with the legislative power? Is it not an axiom, that the administrative and executive power is coextensive with the law-making power? The government which can will, which can decree, can it not enforce? Does not the Constitution embody and announce this great principle, when, departing from and ascending above the timidity and the imbecility of the old Confederation, it declares that "the judicial power shall extend to all cases in law and equity arising under the Constitution, the laws, and treaties of the United States;" and "that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land"? The Senator from Pennsylvania admits that the judiciary act is constitutional; and does not that act proceed on and execute this exact principle? Can you imagine a case in which it was more important that the Constitution should not have left it to the States to execute your legislative will, to refuse to execute it at all, to misconstrue it, to construe it diversely, than it is in these very cases in this bill? You see, I think I have shown, that the Constitution, on a large, obvious, unavoidable policy, to enable you to preserve peace, by performing your national duties, and rightly ordering your national life, has authorized you, by legislation, to adopt the laws of nations, and to declare that they shall be administered. And now, having gone so far, do you think it stops short and withholds from your own judiciary

the power to execute that declaration? Does not every consideration which dictated the intrusting of this power to the national legislature demand that the national judiciary, in its sphere and mode, should have it too? Why, Sir, you have seen that it was especially held in view in the construction of the judicial department, that it should be armed with the means of executing the precise policy of this bill, -the preservation of the national harmony. And, after all that, can you imagine that the Constitution is so incongruous and unintelligible and poor a mimicry of government, as to clothe you, for reasons of peace and justice, with power to adopt a code of laws, the boast, the glory of which is, that it is not one thing at Rome and another at Athens; one thing to-day, and another to-morrow; but that it reaches to the farthest verge of civilization; the same everywhere and always; the guardian of the sailor's midnight sleep; the sovereign of the king on his throne; and yet, leave it to six-and-twenty States to change it into six-and-twenty conflicting codes, or to annul it altogether? Sir, the thing is so absurd, that I lose the practical in the intellectual contemplation. It is not so much a bad government as an impossible idea. There is such a "reconciliation of antipathies" in it; such boastful and large pretensions, and such insignificant performance; such an exaction of obligation, with such denial of free-will; it so mocks you with such a semblance of power, without a particle of the reality, that the understanding does not so truly refuse to believe, as admit its inability to comprehend. The serene writers of "The Federalist" pronounce such a thing "a hydra in government," and I confess I do not think it too far-sought or too harsh an illustration.

But, Mr. President, to those of us who admit that the judiciary act is constitutional, and who receive the decisions of the supreme national court as the law of the land, these general reasonings are superfluous, or worse. If the law-making portion of this bill is constitutional, the jurisdiction of the national judiciary follows of course. The acquiescence of fifty years, of every administration, every party, the refusal of congress to repeal the judiciary act, repeated and masterly judgments of the courts, concur to declare that, in the public opinion of America, this branch of this question is wholly at rest.