Thomas Jefferson Papers

Edmund Randolph’s Opinion on Offenses against the Law of Nations, 5 December 1792

Edmund Randolph’s Opinion on
Offenses against the Law of Nations


Neither of the two cases is cognizable in the U.S. criminaliter; because they arose within the local jurisdictions of Florida and St. Domingo.

Generally speaking; Incendiaries, poisoners, and other very high offenders may be demanded by the sovereign, from whose territory they fled; and ought to be delivered up; according to the law of nations. But no power exists in the U.S.; by which such a surrender can be made.

Civiliter, however, damages may be recovered in the courts of the U.S., under the jurisdictions established by the judicial law, if an alien be a party; and in the state courts, if both plaintiff, and defendant be citizens.

The federal judiciary has1 also cognizance of offences against the law of nations, because that law is attached to the U.S. from the nature of the subject, without an express adoption of it; and because offences, cognizable under the authority of the U.S. are clearly subjected by the judicial law to the circuit court.2 This Mr. J. seems to doubt, and is therefore referred to the 11th. Section.

It is presumed, that congress ought not specially to provide, (considering the circumstances of our country,) for the surrender of malefactors, sheltered in the U.S. Nor can their interposition be necessary; unless it be, to define explicitly those acts, which perhaps may not be absolutely offences against the law of nations, and yet are injurious to our harmony with foreign nations; if any such there be.

MS (DLC); entirely in Randolph’s hand; incorrectly recorded in SJPL under 3 Dec. 1792 beneath the entry for TJ’s Clause for Bill on Offenders against the Law of Nations: “E.R’s opn thereon.”

This document is a commentary on TJ’s 3 Dec. 1792 Opinion on Offenses against the Law of Nations. Randolph was referring to the 11th. section of the Judiciary Act of 1789 (Annals description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials, Washington, D.C., Gales & Seaton, 1834–56, 42 vols. All editions are undependable and pagination varies from one printing to another. The first two volumes of the set cited here have “Compiled … by Joseph Gales, Senior” on the title-page and bear the caption “Gales & Seatons History” on verso and “of Debates in Congress” on recto pages. The remaining volumes bear the caption “History of Congress” on both recto and verso pages. Those using the first two volumes with the latter caption will need to employ the date of the debate or the indexes of debates and speakers. description ends , ii, 2243–4).

1Randolph first wrote “These courts have” before altering the passage to read as above.

2Preceding two words interlined in place of “federal tribunals.”

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