of distinct political associations, qualifying their natural rights as individuals—both parties have equal rights, having no common judge; and the effects of a war on both sides, are the same.

These effects are principally impunity, the acquisition of property; a rule established to promote the general peace of mankind, by removing discussions about the justice of the war, and the proportion of the damages to the injury and the security of purchasers, especially neutrals. But it is objected, this was not solemn war. The approved practice of nations is against this objection. But it was a solemn war. Formalities are arbitrary—an act of parliament authorized hostilities. The declaration of independence speaks of an open war subsisting. Congress formally authorized our citizens to cruise. It has been said that the state of New-York has no common law of nations. The answer is, that law results from the relations of universal society-that our constitution admits the common law, of which the law of nations is a part-and that the United States direct our foreign intercourse, and have expressly become parties to the law of nations. What are the effects of a war? The general proposition is, that movable goods belong to the captor forever, as soon as the battle is over; the fruits of immovables, while they are in possession. Other rules have been laid down with respect to movables; but the true rule is, the battle being over. The ancient precedents of pleading are not that the prize remained a night with the enemy, but that it was gained by battle of the enemy; and pleading is the touchstone of the law. The common law carries the rights of war so far as to give property in a prisoner, and an action of trespass for taking him away. Hence, we see the common law not only adopts the law of nations in its full extent as a general doctrine, but particular adjudications recognise the operation of capture.

The second branch of the discussion related to the effect of the treaty of peace, and tended to show that this action. could not be maintained without a violation of the treaty; every treaty of peace including an amnesty, which is of its very essence, between private persons as well as the contending publics. To the objection, that congress had no right to bind the state, that it was meddling with its internal police, he replied, that on that construction," the confederation was the shadow of a shade;" but that congress had an unquestionable right; that "the sovereignty and independence of the people began by a federal act ; that our external sovereignty is only known in the union— that foreign nations only recognise it in the union; that the declaration of independence was the fundamental constitution of every state, all of which was acceded to by the convention of New-York, which does not pretend to authenticate the act, but only to give their approbation to it :" that hence it followed," that congress had complete sovereignty; that the union was known and legalized in the constitution of New-York previous to the confederation, and that the first act of the state government adopted it as a fundamental law; from which reflections," he says, "we are taught to respect the sovereignty of the union, and to consider its constitutional powers as not controllable by any state."

The confederation is an abridgment of those powers; but, mutilating as it is, it leaves congress the full and exclusive powers of war, peace, and treaty. The power of making peace, is the power of determining its conditions. It is a rule of reason and law, that to whomsoever any thing is granted, that also is granted without which it cannot exist. If congress have not a power to adjust an equivalent for damages sustained, and remit the rest, they have no power to make peace. It is true that this power

does not permit the making all possible conditions,—such as dismembering the empire, or surrendering the liberties of the people; but it includes the power of making all reasonable and usual conditions-such is a remission of damages, for without it the state of war continues.

But it may be asked, how can congress, by treaty, give away the rights of citizens of New-York? To this I answer-First, that the citizens of New-York gave them power to do it for their own safety-Secondly, that the power results from this principle of all governments: that the property of all the individuals of a state is the property of the state itself, in regard to other nations. Hence, an injury from the government gives a right to take away, in war, the property of its innocent subjects. Hence, also, the claim of damages for injuries done is in the public, who may agree for an equivalent, or release the claim without it; and, our external sovereignty existing in the union, the property of all the citizens, in regard to foreign states, belongs to the United States, as a consequence of what is called the eminent domain. Hence, to make the defendant answerable, would be a breach of the treaty of peace. It would be a breach, also, of the confederation. Congress have the exclusive right of war and peace. Congress have made a treaty of peace, pursuant to their power; a breach of the treaty is a violation of their constitutional authority, and a breach of the confederation. The power of congress in making treaties, is of a legislative kind: their proclamation enjoining the observance of it is a law, and a law paramount to that of any particular state. But it is said, "the sovereign authority may, for reasons of state, violate its treaties, and the laws in violation of them bind its own subjects. This allegation goes on bold ground, that the legislature intended to violate the treaty. But I aver that in our constitution it is not true that the soverVOL. III.-2

eignty of any one state has legally this power. Each state has delegated all power of this kind to congress. They are equally to judge of the necessity of breaking, as of the propriety of making, treaties.”

"The legislature of any one state has nothing to do with what are called 'reasons of state.' We might as well say a particular county has a right to alter the laws of the state, as a particular state the laws of the confederation. It has been said, and it may be said again, that the legislature may alter the laws of nations. But this is not true in theory, nor is it constitutional in our government; for congress have the exclusive direction of our foreign affairs, and of all matters relating to the law of nations. No single state has any legal jurisdiction to alter them.

"It may again be said, that the accession to the confederation was an act of our legislature. Why may not another act alter or dissolve it? I answer, it is not true; for the union is known in our constitution as pre-existing. The act of confederation is a modification and abridgment. of federal authority by the original compact.

"But if this were not the case, the reasoning would not apply. For this government, in acceding to the confederation, is to be considered, not as a sovereign enacting a law, but as a party to a contract; as a member of a more extensive community agreeing to a constitution of government. It is absurd to say, one of the parties to a contract may, at pleasure, alter it without the consent of the others. It will not be denied that a part of an empire may, in certain cases, dismember itself from the rest. But this supposes a dissolution of the original compact. While the confederation exists, a law of a particular state derogating from its constitutional authority is no law. But how, you ask, are the judges to decide? they are servants of the state. I answer, the confederation vesting no judicial

powers in congress, excepting in prize causes, in all other matters the judges of each state must of necessity be judges of the United States, and they must take notice of the law of congress as a part of the law of the land. For it must be conceded, that the legislature of one state cannot repeal a law of the United States.

"What is to be done in such a case? It is a rule of law, that when there are two laws, one not repealing the other, expressly or virtually, the judges must construe them so as to make them stand together. That golden rule of the Roman orator may be applied: 'Primum igitur leges oportet contendere considerando utra lex ad majores, hoc est ad utiliores, ad honestiores ac magis necessarias res pertinent. Ex quo conficiscitur utsi leges duæ aut si plures aut quotcunque erunt conservari non possint quia discrepent inter se, ea maxime conservanda putetur quæ ad maximas res pertinere videntur'—'Where two or more laws clash, that which relates to the most important concerns ought to prevail.'

"Many of these arguments are on the supposition, that the trespass act cannot stand with the laws of nations and the treaty. It may, however, legally receive such a construction as will stand with all; and to give it this construction is precisely the duty of the court. We have seen that to make the defendant liable, would be to violate the laws of nations, and forfeit our character as a civilized people; to violate a solemn treaty of peace, and revive the state of hostility; to infringe the confederation of the United States, and to endanger the peace of the whole. Can we suppose all this to have been intended by the legislature? The answer is, 'the law cannot suppose it: if it were intended, the act is void.""

He then proceeded to state rules for the construction of statutes, which rendered this extremity unnecessary, quo