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. 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.'

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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

ting the observation of Cato, "Leges enim ipsæ cupiunt ut jure regantur."

The argument extended to an examination of the jurisdiction of the court, and to a minute investigation of the distinctions to be taken between citizens and British subjects, claiming the protection of the law of nations. It closed with a strong exposure of the criminality of the procedure, and with a vehement exhortation to preserve the confederation and the national faith; quoting the beautiful apothegm of Seneca, "Fides sanctificissimum humani pectoris bonum est."

Amidst all the refinements which have been resorted to in order to impair the powers of the constitution, and to construe it as a compact of states, revocable at the will of either of the contracting parties, it is deeply interesting to advert to this early exposition of the true principles of the American union.-An union formed indeed by compact, but by a compact between the people of these colonies with every individual colonist before the existence of states; recognised by the people of each state, in their state constitutions; confirmed by them as states, in the articles of confederation; and subsequently "perfected" in a constitution ordained and established by the people "for the United States of America."

The result of this argument was a triumph of right over usurpation. The decision indicates the difficulties with. which the defendant contended; but the force of the treaty to overrule the inhibition against pleading a military order, was admitted. The court also declared-" Our union, as has been properly observed, is known, and legalized in our constitution, and adopted as a fundamental law in the first act of our legislature. The federal compact hath vested congress with full and exclusive powers

to make peace and war. This treaty they have made and ratified, and rendered its obligation perpetual; and we are clearly of opinion, that no state in this union can alter or abridge, in a single point, the federal articles or the treaty."

This decision is the more meritorious, because made by judges holding by a temporary tenure, soon after the session of a legislature which had shown a fixed purpose to persevere in their odious and impolitic violence.

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A few days after this judgment was rendered, a large public meeting was convened,* and an address to the people of the state was passed. This address,† after remarking on "the immense ability and learning" of the argument, exhorted the people, in their choice of senators, to elect men who would spurn any proposition that had a tendency to curtail the privileges of the people, and who would protect them from judicial tyranny. Having confined themselves," it stated, "to constitutional measures, and disapproving all others, they were free in sounding the alarm. If their independence was worth contending for against a powerful and enraged monarch, and at the expense of the best blood of America, surely its preservation was worth contending for against those among ourselves who might impiously hope to build their greatness upon the ruins of that fabric which was so dearly established."

The legislature assembled soon after this meeting. Without waiting the result of an appeal, which the constitution secured, this decision, made in due form of law, and with unimpeached fairness, was brought before the assembly. Resolutions were passed, declaring it to be subversive

Sept. 13th, 1784.

+ It is related to have been from the pen of Melancton Smith.