Opinion on Offenses against the Law of Nations
Complaint has been made by the Representatives of Spain that certain individuals of Georgia, entered the State of Florida, and without any application to the Government, seized and carried into Georgia, certain persons, whom they claimed to be their slaves. This aggression was thought the more of, as there exists a convention between that Government and the United States against receiving fugitive slaves.
The minister of France has complained that the master of an American vessel, while lying within a harbor of St. Domingo, having enticed some negroes on board his vessel, under pretext of employment, brought them off and sold them in Georgia as slaves.
1st. Has the General Government cognisance of these offences?
2d. If it has, is any law already provided for trying and punishing them?
1st. The constitution says, “Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States.” I do not consider this clause as reaching the point. I suppose its meaning to be that Congress may collect taxes for the purpose of providing for the General welfare, in those cases, wherein the Constitution empowers them to act for the General welfare. To suppose that it was meant to give them a distinct and substantive power, to do any act which might tend to the General welfare, is to render all the enumerations useless, and to make their powers unlimited. We must seek the power therefore in some other clause of the Constitution. It says further, that Congress shall have power “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations,” these offences were not committed on the high seas, and consequently not within that branch of the clause. Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st. in nature 2. usage. 3. convention? So much may be said in the affirmative, that the Legislators ought to send the case before the judiciary for discussion; and the rather when it is considered, that unless the offenders can be punished under this clause, there is no other which goes directly to their case, and consequently our peace with foreign nations will be constantly at the discretion of individuals. 2d. Have the Legislators sent this question before the Courts by any law already provided. The act of 1789, c. 20 §.9, says the district Courts “shall have cognizance concurrent with the Courts of the several States, or the Circuit Courts, of all causes, where an alien sues for a tort only, in violation of the law of nations,”1 but what if there be no alien, whose interest is such as to support an action for the tort? which is precisely the case of the aggression on Florida. If the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort, it would have been the thing desired. The same act §.13, says, the Supreme Court “shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a Court of Law can have or exercise consistently, with the Law of nations.” Still this is not the case, no ambassador being concerned here. I find nothing else in the law applicable to this question, and therefore presume the case is still to be provided for, and that this may be done by enlarging the jurisdiction of the Courts, so that they may sustain indictments and informations on the public behalf, for offences against the law of nations.
Dec. 3. 1792.
On further examination it does appear that the 11th. section of the judiciary act above cited gives to the Circuit courts exclusively cognizance of all crimes and offences cognizable under the authority of the U.S. and not otherwise provided for. This removes the difficulty however but one step further. For questions then arise 1. what is the peculiar character of the offence in question, to wit, treason, felony, misdemeanor or trespass? 2. what is it’s specific punishment, capital or what? 3. whence is the venue to come?
MS (DLC); in the hand of George Taylor, Jr., with signature, dateline, and postscript by TJ, the last of which was added after his receipt of Edmund Randolph’s opinion of 5 Dec. 1792; recorded in SJPL under 3 Dec. 1792: “Opn. as to defect of law on crimes commd in forn. countries.” PrC (DLC); lacks signature, date, and postscript.
The purpose and intended recipient of this document can only be conjectured. Its antecedents originated in complaints by the Spanish agents and the French minister (see below). In response, TJ had drafted a passage for the President’s annual message to Congress, asking that body to consider “means of preventing those aggressions by our Citizens on the territory of other nations, and other infractions of the law of Nations, which, furnishing just subject of complaint, might endanger our peace with them” (Washington to Congress, 6 Nov. 1792, Fitzpatrick, Writings description begins John C. Fitzpatrick, ed., The Writings of George Washington, Washington, D.C., 1931–44, 39 vols. description ends , xxxii, 209–10; see also note to Paragraphs for the President’s Annual Message to Congress, 15 Oct. 1792). The Senate subsequently appointed a committee to consider the judiciary system whose chairman requested TJ on 4 Dec. 1792 to meet with it two days later in order to discuss this part of the President’s address (Oliver Ellsworth to TJ, 4 Dec. 1792). The day before this meeting was to take place the Attorney General wrote a commentary on TJ’s memorandum suggesting that it took too restrictive a view of federal jurisdiction over infractions of international law by American citizens (Edmund Randolph’s Opinion on Offenses against the Law of Nations, 5 Dec. 1792), in consequence of which TJ added the postscript to his own opinion printed above. TJ’s papers make no further mention of this subject, and nothing more is known about the planned conference with the Senate committee.
It is by no means clear from this sequence of events whom TJ intended as the recipient of his opinion. Although he sent it to the Attorney General to elicit his views on what TJ perceived to be a defect in the American judicial system with serious international implications, the postscript suggests that Randolph was not intended as the ultimate recipient. That the opinion was meant for the Senate committee on the judiciary is also doubtful, since it was written a day before the committee’s chairman formally requested a meeting with TJ. More likely TJ prepared the opinion for the President’s information, perhaps with a view toward having it considered by the Cabinet. Although TJ’s use of the term legislators suggests that he was addressing a member of the executive branch of government, there is no evidence that he ever sent the document to Washington.
The complaint made by the representatives of Spain is contained in Viar and Jaudenes to TJ, 26 June 1792. The 7 Aug. 1791 convention on fugitive slaves is printed as an enclosure to TJ to the Governors of Georgia and South Carolina, 15 Dec. 1791. The letter containing the complaint of the minister of France has not been found, but see TJ to Ternant, 9 Nov. 1792. The act of 1789 was the Judiciary Act passed by Congress (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, 2239–55).
1. Opening quotation marks for this and the next quotation supplied by the Editors.