The Online Library of Liberty

A project of Liberty Fund, Inc.

• Collector’s Acknowledgments
• Collector’s Foreword
• Introduction the Reputation of James Wilson
• The Text
• Part I: Political Papers, Speeches, and Judicial Opinions of James Wilson
• Considerations On the Nature and Extent of the Legislative Authority of the British Parliament, 1774.
• Speech Delivered In the Convention For the Province of Pennsylvania, Held At Philadelphia, In January, 1775.
• An Address to the Inhabitants of the Colonies (1776). *
• An Address to the Inhabitants of the Colonies Submitted to the Continental Congress.
• Considerations On the Bank of North America 1785. A
• Remarks of James Wilson In the Federal Convention, 1787.
• James Wilson’s State House Yard Speech October 6, 1787. *
• Remarks of James Wilson In the Pennsylvania Convention to Ratify the Constitution of the United States, 1787.
• Oration Delivered On the Fourth of July 1788, At the Procession Formed At Philadelphia to Celebrate the Adoption of the Constitution of the United States.
• Speech On Choosing the Members of the Senate By Electors; Delivered, On the 31st December, 1789, In the Convention of Pennsylvania, Assembled For the Purpose of Reviewing, Altering, and Amending the Constitution of the State. a
• Speech Delivered, On 19th January, 1790, In the Convention of Pennsylvania, Assembled For the Purpose of Reviewing, Altering, and Amending the Constitution of the State.
• A Charge Delivered to the Grand Jury In the Circuit Court of the United States, For the District of Virginia, In May, 1791.
• Hayburn’s Case, 2 U.s. 409 (1792), 411–414.
• James Wilson’s Opinion In Chisholm V. State of Ga., 2 U.s. 419 (1793), 453–466.
• Henfield’s Case Case No. 6,360 Circuit Court, D. Pennsylvania 11 F. Cas. 1099 (1793).
• James Wilson’s Opinion In Ware V. Hylton, 3 U.s. 199 (1796), 281
• “on the Improvement and Settlement of Lands In the United States,” Mid-1790s.
• On the History of Property.
• Part 2: Lectures On Law
• Bibliographical Essay History of James Wilson’s Law Lectures
• District of Pennsylvania:—to Wit.
• Preface
• Lectures On Law,: Part I
• Chapter I.: Introductory Lecture. of the Study of the Law In the United States.
• Chapter II.: Of the General Principles of Law and Obligation.
• Chapter III.: Of the Law of Nature.
• Chapter IV.: Of the Law of Nations.
• Chapter V.: Of Municipal Law.
• Chapter VI.: Of Man, As an Individual.
• Chapter VII.: Of Man, As a Member of Society.
• Chapter VIII.: Of Man, As a Member of a Confederation.
• Chapter IX.: Of Man, As a Member of the Great Commonwealth of Nations.
• Chapter X.: Of Government.
• Chapter XI.: Comparison of the Constitution of the United States, With That of Great Britain.

CHAPTER IX.

Of Man, as a Member of the Great Commonwealth of Nations.

Every civil society, under whatever form it appears, whether governed merely by the natural laws of such a society, or by them and civil institutions superadded—every such society, not subordinate to another, is a sovereign state.

Those, who unite in society, lived, before their union, in a state of nature: a state of nature is a state of equality and liberty. That liberty and that equality, belonging to the individuals, before the union, belong, after the union, to the society, which those individuals compose. The consequence is, that a society is subjected to no power or authority without it; that it may do what is necessary for its preservation; that it may exercise all its rights, and is obliged to give an account of its conduct to no one. But these things constitute what is called sovereignty. Every state, therefore, composed of individuals, free and equal, is a state sovereign and independent. The aggregate body possesses all the rights of the individuals, of whom it is formed.

Another consequence is, that the rights of any one state are naturally the same as those of every other. States are moral persons, who live together in a natural society, under the law of nations. To give a state a right to make an immediate figure in the great society of nations, it is sufficient, if it be really sovereign and independent; that is, it must govern itself by its own authority.a Thus, when the United Colonies found it necessary to dissolve the political bonds, which had connected them with Great Britain, and to assume among the powers of the earth the separate and equal station, to which the laws of nature and of nature’s God entitled them; they had a right to publish and declare, as, in fact, they did publish and declare, that “they were free and independent states; and that, as free and independent states, they had full power to levy war, to conclude peace, contract alliances, establish commerce, and to do all other acts and things, which independent states may of right do”; though, at that time, no articles of confederation were agreed upon; nor was any form of civil government instituted by them.

A number of individuals, who have formed themselves into a society or state, are, with regard to the purposes of the society, bound to consider themselves as one moral person. But the rest of mankind, who are not parties to this social compact, are under no obligation to take notice of it; and may still consider the society as a large number of unconnected persons. This personality—I know no better expression for it—of a state must, as to other nations, be derived from their consent and agreement. But when a society have once associated, and considered and announced themselves to other nations as a moral person, this consent and agreement ought not to be refused, without solid and special reasons, which will justify the refusal. On this consent and agreement, the mutual and mutually beneficial intercourse of nations is founded: whatever, therefore, promotes this intercourse, should be zealously encouraged; whatever prevents or interrupts it, should be cautiously avoided.

Though one state has, by an unequal alliance, formed a connexion with another state more powerful; still the weaker state is to be reckoned in the class of sovereigns. To the weaker state, the unequal alliance may secure the most assistance; on the stronger, it may reflect the most honour; but it leaves both the same rank among the society of nations.

We may go further; if a state, in order to provide for its own safety, finds it necessary to place itself under the protection of another; and, in consideration of that protection, stipulates to perform equivalent offices, without devesting itself of the right of self-government; such a state ceases not to preserve its place among sovereigns. The payment even of tribute, though it may diminish the dignity of the society, by no means destroys or impairs its sovereignty or its rights.

Two sovereign states may employ the same executive magistrate, or bear allegiance to the same prince, without any dependence on each other; and each may retain all its national rights, free and undiminished. This last, under the house of Stuart, was the case of England and Scotland, before the nation of Great Britain was formed by their union. This last, also, as shall be hereafter shown at large, was the case of Great Britain and the American colonies, before the political connexion between them was declared to be dissolved.

But one people who have passed under the dominion of another, can no longer form a state: they can no longer retain a place in the great society of nations. Of that great society, equality is the basis and the rule. To this equality, the inferiority of subjection and the superiority of command are, alike, repugnant.

This equality of nations is the great and general foundation of national rights. In this matter, no regard is had to names. On the great theatre of the world, empires, kingdoms, commonwealths, principalities, dukedoms, free towns, are all equally imperial. A society, which, without subordination to any other, exercises within itself all the essential powers of society, is sovereign, and has all the rights of a sovereign and independent state; however narrow its territories; however small its numbers may be.

Every nation deserves consideration and respect; because it makes an immediate figure in the grandest society of the human race; because it is independent of all earthly power; and because it is an assemblage of a number of men, who, doubtless, are more considerable than any individual.

With regard to precedency, or the first place among equals, power and antiquity are grounds, upon which it is claimed or allowed. Into this question, the forms of government do not enter.

The natural state of individuals we have already seen to be a state of society and peace: such also is the natural state of nations. This state, it is the duty of nations, as well as of individuals, to preserve and improve. But among nations, as well as among individuals, differences and causes of difference will, sometimes, unavoidably arise. Over independent nations there is no coercive authority, to which recourse may be had for a decision of their controversies. What, then, shall be done, in order to terminate or adjust them? Much may be done; much ought to be done, before the fatal appeal is made to the dernier resort of sovereigns.

In some peculiar situations, it is more prudent, as well as more honourable, to abandon than to claim a right; to disregard, than to resent an injury: but, by nations, even this laudable and generous conduct should be observed with great prudence and circumspection, and in such a manner as, instead of cowardice, to discover magnanimity. When this conduct can be so observed, what a glorious example does it exhibit to the world! “A king of France ought not to revenge the wrongs of a duke of Orleans,” was nobly said by a monarch of an elevated mind. Might it not also be said, that it is not every petty offence, which ought to provoke the dignified energy of sovereign power? Suppose a picture, disrespectful to Lewis the fourteenth, had been exhibited in Holland; was this a sufficient occasion for drawing forth the great monarch at the head of the armies of France? Was it a sufficient occasion for drawing him forth at the head of those armies against a power, comparatively inconsiderable, and trembling to its centre from a conscious sense of its own inferiority?

On some occasions, it may be proper to claim a right, or take notice of an injury, merely with a determined and heroick purpose of ceding the former, and of forgiving the latter. This mode of proceeding, adopted at a proper time, in a proper manner, and by a proper person, has a great and a useful effect. It displays the good sense and superiour judgment of him, who observes it; and secures the esteem, perhaps the friendship of him, towards whom it is observed.

Controversies often happen, when neither of the parties to them is intentionally wrong: they arise from misapprehensions or mistakes. In such cases, nothing more is necessary for an amicable accommodation, than candid conference and mutual explanation. “There are two kinds of disputation,” says Cicero,b “one, by argument and reason; the other, by violence and force. To determine controversies by the former belongs to man; by the latter, to the brutes. To the latter we ought never to have recourse, but when all hopes of success by the former are proved to be unavailing.” If in every minute particular, an entire coincidence of sentiment and interest cannot take place; concessions, in the course of a negotiation, may be made on both sides; and, in this manner, a satisfactory adjustment of every difference may be effectuated.

If the parties themselves, notwithstanding their peaceful and proper inclinations, cannot finally agree upon the terms, according to which the difference should be adjusted; those terms may, in many instances, be arranged and settled by the kind and benevolent mediation of a common friend. Delicate, indeed, but highly useful is the office of a mediator. Address, prudence, a winning smoothness, but, above all, a most strict impartiality are the rare qualifications, which he ought to possess. Possessing these, he will favour what is due to justice and right; but remembering, at the same time, that his office is to conciliate, and not to judge, his leading effort will be to preserve or to procure peace, and to prevail on him, who has even justice on his side, to relax something, if such a relaxation shall be necessary for accomplishing a purpose so desirable and so humane. In the Alcoran,2 it is delivered as an indispensable injunction, that if two nations of the faithful will go to war, the others shall interpose and force the aggressor to make satisfaction, and afterwards lay both under an obligation to live, for the future, in peace and friendship.c

If, unfortunately, neither negotiation nor friendly interposition of disinterested and benevolent powers shall prove effectual, for determining a controversy between two nations; there is another method remaining, by which mutual irritation and, much more, dreadful extremities may be prevented between those, who have no common judge upon earth, to whom they can appeal. This method is, to refer the matter in dispute to the award of arbitrators.

This mode of decision has been embraced by nations, the most powerful and the most wise. When the Athenians and the citizens of Megara had a dispute concerning the property of the island of Salamis, five Lacedemonian umpires were chosen to settle their contested claims. Some of the Italian states, in the early ages of Rome, submitted their controversies to the determination of the Romans. The Romans themselves, haughty and domineering as they were, and proud of the character debellare superbos,3 proposed to the Samnites, that the subject of their contention should be referred to the arbitration of their common friends and allies.d The Druids, those revered ministers of a mysterious superstition, were the umpires between nations at war, and frequently brought matters to an accommodation, when the belligerent powers were on the very instant of an engagement. “It is cruel and detestable,” says Thucydides, “to treat him as an enemy, who is willing to submit his case to an arbitration.”e

In all their alliances with one another, and even in those, which they have formed with the neighbouring powers, the Swiss have used the wise precaution to ascertain, beforehand, the manner, in which their differences should be left to the award of arbitrators, in case it should prove impracticable to adjust them upon amicable terms. This prudent and judicious policy has contributed, in no small degree, to maintain the Helvetian republick in that flourishing state, which has secured its liberty, and rendered it respectable over all Europe.f

When the sentence of the arbitrators is given, it ought to be obeyed; unless it be flagrantly partial, manifestly unjust, or clearly beyond the powers given by the submission. If the award is upon the very point disputed, it can never be manifestly unjust, since it has been rendered doubtful by the dissension of the parties.

It has been the opinion of some very respectable and well informed writers, that it would be highly convenient, and even somewhat necessary, that congresses of a number of states should be held, in which the differences of contending parties might be determined by those altogether disinterested in them; and in which, likewise, some effectual means might be devised and carried into execution, for compelling nations at war to conclude a peace upon fair and equitable conditions. In the course of the present century, two general congresses have been held in Europe—one at Cambray; the other at Soissons: but they were nothing more than pompous farces, acted, with great parade, by those, who wished to appear solicitous for an accommodation, but who, in fact, were little solicitous to promote it.g

If justice cannot be obtained in any of the peaceful modes abovementioned; a nation has then a right to do itself justice. But even this ought to be done, when it can possibly be done, without proceeding to the last direful necessity of commencing a war. Reprisals may be made. If one nation has got into its possession what belongs to another, and will not restore it; if it refuses to pay a just debt, or to make reparation for an injury; that other nation may seize property belonging to the first, may apply it for its own benefit, in discharge of what is due, together with interest and damages; or it may hold the property in pledge, until satisfaction be made.

The subject of reprisals is so delicate and interesting that the nature and the extent of the right to make them deserve a careful and accurate investigation.

We have already seen,h that a nation is to be considered as a moral person, having an understanding and will peculiar to itself: as such it is considered by the law of nations. The consequence necessarily is, that every act of this moral or collective person must, in the view of that law, be the concurrent act of its several members.

From the same principles, the property of each of the members must, with regard to other states, be deemed the property of the whole nation. In some degree, this is, in truth, the case; because the nation has power over the riches of the citizens; and because those riches form a part of the national wealth. All those, who compose a nation, making, in the consideration of foreign states, one whole, or one single person; all their property must be considered as the property of that single person. It is in the power of a nation to establish, among its citizens, a community of goods; but whether this is done, or is not done, the separate property of those citizens can neither be known nor discriminated by other states. The unavoidable result is, that, if one nation has a right to any part of the goods of another, it has a right to the goods of its citizens, till the right be satisfied or discharged. The unavoidable result, again, is, that when it is justifiable to make reprisals, they may be made on the property of any of the citizens, as well as on that of the nation. From this rule, one exception has been made, and deserves to be established. This exception is made in favour of a deposit trusted to the faith of the nation, which has a right to make reprisals. This deposit has been made only in consequence of the reliance, which the owner had on this faith: this faith ought to be respected, even in the case of an open and declared war. For this reason, in France, in England, and in some other countries of Europe, the money, which hostile foreigners have placed in the publick funds, has been considered as sacred from the rights of reprisals, and even of war.

He who, for the injustice done by a nation, makes reprisals upon the property of its citizens indiscriminately, cannot be accused of seizing the property of one person in order to satisfy the debt of another. It is a demand against the state, to the discharge of which every citizen is bound to contribute his just proportion. It is the duty and business of the nation to provide, that those citizens, upon whom the reprisals fall immediately, should be indemnified for every thing beyond that share, which, on a fair assessment, they ought to pay. The nation ought to go farther: if the reprisals have been occasioned originally by the injustice or violence of some of its members; those members should be compelled to make satisfaction for every loss, which has arisen from their conduct.

Though the property of the private citizens, from the nature and the necessity of the case, must, in many, perhaps, in most instances, be considered by foreign states as liable for their demands against the nation; yet where publick property can be known and certainly distinguished, it is unquestionably proper, that such property should, in the first place, be the selected object of reprisals, if to reprisals it be easily or conveniently accessible. The principles of humanity and the dictates of magnanimity suggest, with equal force, the reasonableness and propriety of this discrimination, whenever it can be made.

As the property of a nation, or of the citizens of a nation, may be seized by reprisals, in order to compel it to do justice; so, on some occasions, the citizens themselves may be seized, in consequence of the same principles, and may be detained until full satisfaction has been received. This mode of proceeding was known among the Grecians by a name, which may be literally translated mancatching; ’Aνδροληψια. At Athens, the law permitted the relations of him, who had been assassinated in a foreign country, to apprehend three persons of that country, and detain them, till the assassin was punished or delivered up.

In making reprisals, three precautions should be inviolably observed. 1. They ought not to be made without the authority of the nation. Though reprisals are not war; and though their proper use is to prevent war; yet they approach to a war, and are often followed by one. They are, therefore, proceedings of too much publick moment, to be carried on under the direction and at the discretion of individuals; probably, of individuals immediately and particularly interested in them. In all civilized countries, therefore, it is the unvaried practice, that when a citizen considers himself as injured by a foreign state, he applies to the sovereign power of his nation for permission to make reprisals. 2. Reprisals ought to be made only for a demand, which is both just and certain. If it be doubtful or unliquidated, the first application should be for such steps as may be necessary to ascertain its reasonableness and its extent. 3. The reprisals should be in a due proportion to the demand. General reprisals, the grand pensionary De Wit4 used to say, were scarcely to be distinguished from an open war.

We have now seen that the citizens, in their persons and in their fortunes, may be accountable for the conduct of the nation: so, on the other hand, the nation may sometimes be accountable for the conduct of its private citizens.

The state should protect the citizen, should defend him from injury, and should procure reparation for injuries which he has sustained. So, likewise, the nation should not suffer its citizens to commit injuries against the citizens of other states; it ought to disclaim the conduct of such as offer injuries; and ought to compel or to give satisfaction for the injuries which have been offered.

It is impossible, however, that, even in the best regulated state, the government should be able to superintend the whole conduct of all the citizens, and to restrain them within the precise bounds of duty and obedience: it would be unjust, therefore, to impute to the nation, or to the government, all the faults or offences, which its members may commit. Hence it does not necessarily follow, that one has received an injury from a nation, merely because he has received an injury from a citizen belonging to that nation. To a whole state, the follies, the injuries, or the crimes of a particular person ought not to be immediately ascribed: in every state, wicked and disorderly citizens are unhappily to be found: let such be held responsible for the consequences of their crimes and disorders.

This doctrine is certainly reasonable and just; but if a nation wishes not to be involved in the punishment of her citizens, she should sedulously avoid the impropriety and the offence of becoming an accomplice in their injuries and crimes. In their injuries and crimes she becomes an accomplice, when she approves or ratifies them, and when she affords protection and security to those, who have committed them. In such cases, the nation may justly be considered as even the author, and the citizens as only the instruments, of the wrong or outrage which has been done.

When the offending citizen escapes into his own country, his nation should oblige him to repair the damage, if reparation can be made; should punish him according to the measure of his offence; or, when the nature and the circumstances of the case require it, deliver him up to the offended state to meet his doom there. This is frequently done with regard to atrocious crimes, such as are equally contrary to the laws and the safety of all nations.

In states, which are most strictly connected by friendship and good neighbourhood, they go farther still. Even with regard to common injuries, which are prosecuted civilly, whether for reparation of damage, or for a slight civil punishment, the citizens of two neighbouring states are reciprocally compelled to appear before the magistrate of the country, in which they are accused of having offended. On a requisition of this magistrate, which is called a letter rogatory, they are cited judicially, and compelled by their own proper magistrates to appear. “An admirable institution!” exclaims Vattel,i in a tone of admiration, “by which many neighbouring states live together in peace and harmony, and seem to form but one and the same commonwealth.” This institution is in force through all Switzerland.

If we could restrain, would it be proper to restrain the pleasing and animating reflection, that even the most admired institutions of Europe are improved, while they are adopted by the United States? For the trial and punishment of every kind of offence, prosecuted criminally, and, therefore, on common law principles, locally, the following provision is made in our national constitution.j “A person charged, in any state, with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state, having jurisdiction of the crime.” In civil causes of a transitory nature, no such provision is necessary; but a much better one is made. In Switzerland, controversies depending between citizens of different states must be decided by the magistrates of a state, of which one party, but not the other, is a citizen. But, in the United States, for controversies depending between citizens of two different states, a tribunal is formed and established, impartial, and equally independent of both.

The foregoing remarks exhibit, in a very striking point of view, the numerous, the near, and the important relations, by which states and the members of states may be connected together. We here discover the much famed institutions of Alfred the Great, extended on a national scale. In the great society of nations, we see each citizen bound for the good behaviour of all, and all bound for the good behaviour of each. As the principles of society, humanity, benevolence, and liberality shall become more and more regarded and cultivated, the rights and duties of different nations, and of the citizens of different nations, will become more and more studied, and will be better and better practised and observed. In this study, the present century has witnessed great and manifest improvements. In this study all men are interested: it is rich in delight: it is inestimable in importance: its maxims should be known by every citizen of every free state.

The relations existing between different states and the citizens of different states, and the rights and duties arising from those relations, form a constituent part of the common law. In that country, from which the common law has been brought, the law of nations has always been most respectfully and attentively adopted and regarded by the municipal tribunals, in all matters, concerning which it is proper to have recourse to that rule of decision. The law of nations, in its full extent, is a part of the law of England.k The infractions of that law form a portion of her code of criminal jurisprudence. In civil transactions between the citizens of different states, that law has, in England, been received in its most ample latitude.

One branch of that law, which, since the extension of commerce, and the frequent and liberal intercourse between different nations, has become of peculiar importance, is called the law of merchants. This system of law has been admitted to decide controversies concerning bills of exchange, policies of insurance, and other mercantile transactions, both where citizens of different states, and where citizens of the same state only, have been interested in the event.l This system has, of late years, been greatly elucidated, and reduced to rational and solid principles, by a series of adjudications, for which the commercial world is much indebted to a celebrated judge, long famed for his comprehensive talents and luminous learning in general jurisprudence.

Another branch of the law of nations, which has also become peculiarly important by the extension of commerce, is the law maritime. In a cause depending in the court of king’s bench in England, and tried at one of the assizes, my Lord Mansfield, the great judge to whom allusion has been just now made, was desirous to have a case made of it for solemn adjudication; not because he himself entertained great doubts concerning it; but in order to settle the point, on which it turned, more deliberately, solemnly, and notoriously; as it was of an extensive nature; and especially as the maritime law is not the law of a particular country, but the general law of nations: non erit alia lex Romae, alia Athenis; alia nunc, alia posthac; sed et apud omnes gentes et omni tempore, una eademque lex obtinebit.m

In the plan of my lectures, I proposed a question, the greatness of which is selfevident—How far, on the principles of the confederation, does the law of nations become the municipal law of the United States? I mentioned, that it would be unwise, at that time, to hint at an answer. An answer I mean not to give even now: but I deem it highly proper now to state the nature, the extent, and the importance of the question. It points to a course new and unexplored.

We have seen the divine origin; we have seen the amazing extent; we have seen the uncommon magnitude of the law of nations: we have, in part, seen, likewise, how ineffective the execution of that law, under human authority, has hitherto been.

Amicable agreement between parties in controversy has been recommended, and recommended with great propriety, where the recommendation can take effect: but controversy, which has arisen, and which, from the very supposition of the case, subsists between the parties, is certainly not the most natural guide to lead to an amicable accommodation. The mediation of a disinterested and benevolent power has been recommended likewise: but this mediation, though it enhances the merit and displays the beauty of the candid, the peaceful, and the disinterested virtues, affords no reasonable security, that the exertion of those virtues will be accompanied with the wished for effect. To arbitration recourse has been advised: but to the institution of arbitrators, the previous consent of the parties in controversy is requisite: and how, against the unwilling, is the award of the arbitrators to be enforced?

What is next to be done? The same disposition or the same mistake, which, on one of the sides, must have given birth to the controversy, will probably communicate to it vigour and perseverance. Nay, that disagreement of mind between the parties, which must have taken place when the controversy commenced, is likely to be increased, instead of being diminished, by the frequent, numerous, and mutual irritations, which will unavoidably happen in the prosecution of it. All the modes of adjustment, which have been hitherto mentioned, presuppose the reconciliation of irritated minds. But must the peaceful adjustment of controversies between states—an adjustment so salutary and so necessary to the human race—depend on events so very precarious, so very improbable? Must the alternatives in disputes and differences between the dignified assemblages of men, known by the name of nations, be the same, which are the prerogatives of savages in the rudest and most deformed state of society—voluntary accommodation, or open war, or violent reprisals, inferiour, in odium, only to war? Individuals unite in civil society, and institute judges with authority to decide, and with authority also to carry their decisions into full and adequate execution, that justice may be done and war may be prevented. Are states too wise or too proud to receive a lesson from individuals? Is the idea of a common judge between nations less admissible than that of a common judge between men? If admissible in idea, would it not be desirable to have an opportunity of trying whether the idea may not be reduced to practice? To return to the original question—has or has not our national constitution given us an opportunity of making this great and interesting trial?

Let us turn our most scrutinizing attention to the situation, in which, on the principles of that system, the states and the people, composing the American Union, stand with regard to one another; the situation, in which they stand with regard to foreign nations; and the situation, in which they stand with regard to the government of the United States.

With regard to one another, they have, by ordaining and establishing the national constitution, engaged to “form a more perfect union,” “to ensure domestick tranquillity,” “to establish justice:”n they have engaged “that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states:”o they have engaged that no state shall enter into “any treaty, alliance, or confederation;”p “nor, without the consent of congress, into any agreement or compact with another state.”q

With regard to foreign nations, the states, composing the American Union, have made an engagement precisely in the terms of the last mentioned engagement, which they have made with regard to one another—absolutely to enter into no treaty, alliance, or confederation with foreign nations; and to enter into no agreement or compact with them, unless with the consent of congress.r

With regard to the government of the United States, they have engaged that the judicial power of the United States shall extend “to controversies between two or more states; between a state and the citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects.”s

The law of nations respecting treaties, alliances, and confederations must be thrown entirely out of the question: these are absolutely interdicted.

The law of nations respecting agreements and compacts between two or more states; between a state and the citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects, will still be applicable, as before the national constitution was established, to controversies arising in all those different enumerated cases.

In all those different enumerated cases, the tribunals of the United States have judicial authority to decide. By what law shall their decisions be governed? Before the establishment of the national government, controversies happening in those enumerated cases, if determined at all, must have been determined by the principles and rules of the law of nations. But before that establishment, there was no power to determine them judicially by any law.

We have already seen that, in England, the courts of common law, in cases, to which the law of nations, and particularly in cases, to which one great branch of it, the law of merchants is applicable, have made approved application of that law, and have received it, in its fullest extent, as a part of the law of England. Should a similar conduct be observed by the tribunals of the United States, in the numerous and very important cases, to which the national constitution extends their judicial authority?

If a similar conduct ought to be observed by those tribunals; what an immense improvement has taken place in the application and administration of the law of nations! Hitherto that great law has been applied and administered by the force or by the pleasure of the parties in controversy: in the United States, it can now be applied and administered by impartial, independent, and efficient, though peaceful authority.

This deduction, if properly founded, places the government of the United States in an aspect, new, indeed, but very conspicuous. It is vested with the exalted power of administering judicially the law of nations, which we have formerly seen to be the law of sovereigns.

It has been already observed, that the maxims of this law ought to be known by every citizen of every free state. Reasons, and very sufficient ones, were suggested, why this should be the case. A new reason, striking and illustrious, now appears, why the maxims of this law ought to be particularly known and studied by every citizen of the United States. To every citizen of the United States, this law is not only a rule of conduct, but may be a rule of decision. As judges and as jurors, the administration of this law is, in many important instances, committed to their care.

What a beautiful and magnificent prospect of government is now opened before you! The sluices of discord, devastation, and war are shut: those of harmony, improvement, and happiness are opened! On earth there is peace and good will towards men! On contemplating such a prospect, though only by the eye of a sublime imagination, well might the ardent and elevated Henry address the congenial ardour and elevation of Elizabeth—O most excellent and rare enterprise—Thought rather divine than human!

To us this prospect is realized by happy experience: how thankful ought we to be in enjoying it! how zealous should we be to secure it to ourselves and to our latest posterity! how anxious should we be to extend its example, its influence, and its advantages to the remotest regions of the habitable globe!

[a. ]Vat. b. 1. s. 4.

[1. ]Nor would God intervene, unless the predicament be worthy of a helper to untangle it.

[b. ]De off . l. 1. c. 11.

[2. ]Archaic term for the Koran.

[c. ]Puff . 556. b. 5. c. 13. s. 7.

[3. ]To battle down the proud. From Virgil’s Aeneid, book VI, line 853.

[d. ]Liv. l. 8. c. 23.

[e. ]Gro. 486. 487.

[f. ]Vat. b. 2. s. 329.

[g. ]Vat. b. 2. s. 330. I.e.

[h. ]Ante p. 635. 636.

[4. ]John De Witt (1625–1672) was the Grand Pensionary of Holland during the wars with England from 1653 to 1672.

[i. ]B. 2. s. 76.

[j. ]Art. 4. s. 2.

[k. ]3. Burr. 1481.

[l. ]In commercial cases, all nations ought to have their laws conformable to each other. Fides servanda est; simplicitas juris gentium praevaleat. 3. Burr. 1672. “Faith must be kept; the simplicity of the law of nations must prevail.”

[m. ]2. Burr. 887. “There will not be one law in Rome, another in Athens one now, another later; but both among all peoples and at every time one and the same law will prevail.”

[n. ]Preamb.

[o. ]Art. 4. s. 2.

[p. ]Art. 1. s. 10.

[q. ]Ibid.

[r. ]Ibid.

[s. ]Art. 3. s. 2.