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,

and performing all the duties imposed on it by the Constitution. But the adoption and administration of the laws of nations, to the extent of the cases in this bill, is a necessary and proper means of executing certain of those powers, and performing certain of those duties, and, therefore, you may so far adopt them and provide for their administration. Such, in other words, in the same words rather, are your powers,-such your duties under the Constitution, that the adoption and administration of the law of nations is proper, necessary, indispensable, to enable you to execute and perform them.

I say nothing, in aid of my argument, of the "common defence and general welfare." I do not attempt, and I did not understand the Senator from Georgia to attempt, to deduce any power at all from that language, so broad, but so vague, and of such uncertain and disputed signification. But, finding an express authority, carefully and clearly conveyed, to do what is necessary and proper to be done for the purpose of executing the Constitution, I hope that a sober and free inquiry, whether the adoption and administration of part of the laws of nations are a necessary means to that end, may not very rapidly accelerate the fulfilment of the prophecy, which the Senator from Pennsylvania has found in the Foreign Quarterly Review, that our institutions, so instinct throughout with fervid, passionate, and inextinguishable liberty, are soon to merge in centralization and monarchy.

Let this proposition, then, be examined. It is admitted by everybody that the Constitution holds out the Union under the general government, for all purposes of foreign intercourse, for all foreign relations, as THE NATION. It makes, and it

proclaims it such. It bestows on it all the powers of foreign public intercourse known to our system, belligerent, pacific, diplomatic, commercial. It intrusts to its control and administration all the modes by which one nation, as such, can communicate with another nation, as such. A State cannot go to war, nor make a peace, nor send nor receive ministers, nor regulate the terms on which it will trade with a single spot on the globe beyond its own borders. In all these respects, for all these purposes, for everything beyond its own borders, States are no more, no other, than individual, natural persons, component atoms of the great unit mass. "If," says Mr.

Madison, in the forty-second number of "The Federalist,' "we are to be one nation in any respect, it clearly ought to be in respect to other nations." And one nation we certainly are, e pluribus unum, for some purposes.

"That the United States form, for many and for most important purposes, a single nation, has not yet been denied. In war we are one people; in making peace we are one people; in all commercial regulations we are one and the same people; in many other respects, the American people are one; and the government, which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and, in that character, they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes her government is complete; to all these objects it is competent. The people have declared that, in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire-for some purposes sovereign, for some purposes subordinate."- Opinion of Chief Justice Marshall in Cohens v. Virginia.

In Holmes v. Jennison, 14 Peters, 570, Chief Justice Taney

says,

"All the powers which relate to our foreign intercourse are confided to the general government. Everything that concerns our foreign relations, and that may be used to preserve peace or to wage war, has been committed to the hands of the federal government.”

In holding you out as the nation, in making you the nation, the Constitution makes you alone responsible to the complaint, well or ill founded, of every other nation in the world. It makes you responsible, and it makes the States irresponsible. It withdraws the States, and it withdraws the people from view, and incloses and shelters them within one common and wide sweep of city wall. It does not allow a State, as such, so much as to be spoken to, in anger or in kindness, by a foreign nation, as such. Not even a blow, not even a shot, can reach a State. Whatever it is aimed at, by the theory of our system, it strikes, alight where it will, your giant form alone. The duty of avoiding war, by doing justice, or by displaying spirit; the whole vast cost of maintaining it when it comes; the duty and the cost of closing or of preventing it by negotia tion; all are devolved directly and solely on you. Your posi

tion would not, in these particulars, be varied a jot that I can see, if the States were melted down into a single people, and their constitutions, their partial sovereignty, their lines of boundary, and their very names, had perished, like the architecture, the polity, and all the glories of a primitive and forgotten civilization. There is a sense, no doubt, in which it may be the duty of every citizen and every State to assist in preserving the national peace, but all which the nation, as such, can do to that end, is your business and your duty alone.

In thus erecting you into the nation, and setting you, not the States, on the high places of responsibility, the Constitution subjects you, subjects the Union, the general government, to the general law of nations, in so far as that law applies to your intercourse with and relation to the rest of the world. It subjects you to it in a totally different sense from that in which the States are subject to it. It places you in a position, it clothes you with powers, it imposes on you duties, which make it your peculiar, national, imperial duty to the Constitution and under the Constitution to observe and administer that law to that extent. I regard the Constitution as declaring, by inevitable implication, as intelligibly and as peremptorily as if it were written in it, that the laws of nations, in so far as they apply to and regulate intercourse with foreigners and foreign governments, are, or may be made by the legislature, obligatory on and in the United States, exactly as they are on and in the other Christian and civilized nations of the world.

The Constitution declares this in and by the mere act of bringing you into the circle of independent, Christian, and civilized nations. It is the condition of such national existence to be under that code. You cannot be a nation at all, and yet be so great as to be exempted from the power, or so little as not to feel the care, of that law "whose seat is the bosom of God, whose voice is the harmony of the world." If I may vary the fine and strong thought of Cicero, to escape from it, you must fly from yourselves, and spurn even your own national nature. You may cease to be a nation; you may break the golden, unseen band of the constellation in which we move along, and shoot apart, separate, wandering stars, into the infinite abyss; you may throw down the radiant ensign, and descend from the everlasting and glittering summits of your freedom and your

power; but while you exist as now you do, the only nation of our system known to the other nations, you are under, you must obey, and you may claim upon, the common code of all civilized and Christian commonwealths.

And not so only, Sir; but the Constitution everywhere assumes and sends you to that law as your law. You may make war, it tells you; but the causes of war, the law of war, the conduct of war, its iron rights, the rights and duties of neutrality—where are you taught these things, where are you prescribed these things, but by this venerable and universal jurisprudence? You may negotiate, and what is that but the bringing up of national controversies to this standard and exponent of the jura gentium? You may make treaties, and where do you find the learning of treaties? You are to "establish justice," and what is its measure but this? You may regulate commerce; but the grand, controlling, and elementary principles of the international intercourse, even of trade, are they not to be found here, and here alone? You may define and punish offences against the law of nations; and is it not then your law,-yours for interpretation,-yours for enforcement? You are an independent nation; and are not the principles of national independence a leading title of international law?

Accordingly, Mr. President, from the first national breath we drew, we have assumed that we were subject, to the extent I have defined, to the laws of nations. Every minister we have sent or received, every demand of justice we have made or had made on us, every diplomatic act, every peace, every war, innumerable executive and judicial and legislative determinations, have assumed and recognized it. I do, indeed, understand the Senator from Pennsylvania himself, as conceding the position as fully as I have urged it.

And now, Sir, the question is narrowed to this: since the Constitution makes you a nation, the only nation for intercourse with the world known to our system; since it makes you alone responsible to the call of the world; since it devolves on you alone the duty of preserving honorable peace and of securing just war, so far as any such national duty exists on any body; since it subjects you to the general law of nations, and imposes on you, as a nation, the duty of obedience to it, does it not clothe you with the power to provide for