Imatges de pàgina

shore, such person shall be adjudged a pirate;" in which last respect, the statute seems to be mereiy declaratory of the law of nations.*

The power to define and punish piracy and felonies on the high seas is exclusive in its nature; but it has been doubted whether the power to punish other offences against international law ought not to be considered as exclusively vested in Congress, on the ground that the law of nations forms a part of the common law of every state in the Union, and that violations of it may be committed on land as well as at sea. The jurisdiction of the several states is certainly superseded in regard to those offences against international law which are committed at sea; but it does not seem, however, to follow, as a necessary consequence, that it is also superseded in regard to those committed on shore. These of fences are of various kinds, and the power to define and punish them is, with great propriety, given to Congress, as it prevents difficulties which might arise from the doubt of a concurrent jurisdiction of them by the states; and, so far as they have been defined by Congress, they may be said to arise under the Constitution and laws of the United States, and to be finally, if not exclusively, cognizable under the Federal authority.

But there are some such offences not enumerated in the acts of Congress; and if the doctrine be sound, that the criminal jurisdiction of the Union is confined to cases expressly provided for by Congress, either those violations of international law, of which the punishment remains unprovided for by Congress, must go unpunished, or the state courts must entertain jurisdiction

* Drug., 015.

of them. The United States being alone responsible to foreign nations for all that affects their mutual intercourse, it rests with the National Government to declare what shall constitute offences against the law regulating that intercourse, and to prescribe suitable punishments for their commission. But if cases arise for which no provision has been made by Congress, both the national and state governments, withia the spheres of their respective jurisdictions, are thrown upon those general principles, which, being enforced by other nations, those nations have a right to require to be applied in their favour.

The offences falling more immediately under the cognizance of the law of nations are, besides piracy, violations of safe-conducts, and infringements of the rights of ambassadors and other public ministers.

A safe-conduct or passport contains a pledge of the public faith that it shall be duly respected, and the observance of this duty is essential to the character of the government which grants it. In furtherance of the general sanction of public law, Congress has provided that persons violating a safe-conduct or passport granted by the government of the United States, shall, on conviction, be subjected to fine and imprison. ment. The same punishment is inflicted upon persons offering violence to ambassadors or other public ministers, or being concerned in prosecuting or arresting them; and the process whereby their persons, or those of their domestics, may be imprisoned, or their goods seized or attached, is declared void. The policy of these laws regards such proceedings against foreign ministers as highly injurious to a free and liberal

communication between different governments, and mischievous in their consequences to any nation. They tend, most certainly, to provoke the resentment of the sovereign whom the envoy represents, and to bring upon the country the calamity of war; and, therefore, every civil. ized nation has an equal interest in upholding the privileges of their representatives abroad, and punishing the breaches of them by its own citizens.

III. The power of regulating foreign commerce is intimately connected with the power of concluding treaties, especially those of commerce and navigation, and is, with equal propriety, submitted to the National Government.

The oppressed and degraded state of commerce before the adoption of the Federal Consti. tution, and the injury it sustained from the impotent and disconnected efforts of the several statesto counteract the restrictions imposed on it by foreign nations, with a view to their own interests, contributed more, perhaps, to the introduction of our present system of government, than any other of the numerous evils proceeding from the feebleness of the Confederation. The former Congress, indeed, possessed the power of making commercial treaties, but its inability to enforce them rendered that power, in a great degree, useless; and all who were capable of estimating the influ. ence of commerce on national prosperity, perceived the necessity of giving the control over this important subject to the General Government. It is not, therefore, matter of surprise, that the grant should be as extensive as the mis. chiefs that had been experienced; and it is equally apparent that to construe the grant so

as to impair its efficacy, would tend to defeat an object in the attainment of which the American people felt that deep interest which arose from a strong and just conviction that the whole commerce of the nation should be regulated by Congress. From its very nature, this power must be considered as exclusive ; for if the several states had retained the right of regulating their own commerce, each of them, as experience had indicated, would probably have pursued a different system; mutual jealousies, rivalries, restrictions, and prohibitions would have ensued, which a common superior alone could prevent or cure, and, at the same time, command that confidence of foreign nations, which is necessary to the negotiation of commercial treaties.

But the nature and extent of this power has been fully and ably discussed, and satisfactorily settled by the Supreme Court of the United States, especially in a case which drew in question, and overruled the constitutionality of the laws of New York, vesting in certain individuals the exclusive right of steam navigation upon its waters.* On that occasion it was held, that the general power to regulate commerce was not restricted merely to the buying and selling or exchanging commodities, but included the navigation of vessels, and commercial intercourse in all its branches, and extended to all vessels, by whatsoever force propelled, and to whatever pur. pose appropriated. It was observed by the venerable and lamented Chief-justice Marshall, in

* 19 Wheaton, 446. Having beer consulted by the late Mr. Gibbons before he determined to try the validity of this grant, it may not be improper to subjoin the opinion given on that ocea sion. Vide Appendix F.

delivering the opinion of the court, that, if com merce did not include navigation, the govern ment of the Union had no direct power over that subject, and could make no law prescribing the requisites to constitute American vessels, or require them to be navigated by American seamen; yet this power had been exercised from the beginning of the government, with the universal consent of the states and of the Union, and had been as universally understood to be a commercial regulation. The word commerce, indeed, must have been understood to comprehend navigation when the Constitution was adopted, as the power over both was one of the primary objects for which the Constitution was formed; and in that comprehensive sense is the term used in the Constitution. It is a rule of construction universally acknowledged, that the exceptions from a power mark its extent; for it would be absurd as well as useless to except from a power granted, that which the words of the grant could never comprehend. If, therefore, the Constitution contains plain exceptions from the power over navigation-plain inhibitions against the exercise of that power in a particular way—it is evident that the power to which they apply must have been intended to have been granted.

The power to regulate commerce, thus understood, is held to extend to every species of commercial intercourse between the United States and foreign nations, and among the states; and although the expressions relative to the states were not intended to comprehend that commerce which is completely internal, and carried on between individuals in a state, or different parts of the same state, without extending to, or affect

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