13 October 2007

If they don't teach it, how can you forget it?

The following is a cross-post from The Jacksonian Party.

The following is a personal outlook paper of The Jacksonian Party.

We are taught time and again that the laws of the United States are based only on the things carried through by English Common Law and those things that we have made since the Constitution. I remember teacher after teacher giving that view: that America places its foundations on the inherited Common Law and that, really, nothing else is incorporated into the Constitution. There is no 'unwritten law' in the United States, and it is all in law books and legal books of various sorts.

Really! I went to a very good school system in NY State (fifth in the State academically) and it was in the top 50 nationwide. Had some damned fine social studies teachers (and a few klinkers, it can be said), but that basic view, above, is given. It is a lovely view and right... to a point. There are, however, two things given in the Constitution that are not explicitly written down in Federal Code, but serve as power oversight concepts. One is explicitly stated, the other brought in by reference to the type of law involved. Both have been used in court trials all the way to the SCOTUS level to demonstrate the justification for interpretation of law not only as given in the Constitution, but as the background view of how America works.

I have never been taught about this in any school, nor university and have had to figure this out on my lonesome. In doing that I can come to no other conclusion that these vital views of why the Nation can and cannot do things has been deliberately left out of the curriculum, save for that of law schools. This stuff is, however, not difficult to understand and was written in an era when explicit statements triumphed over verbiage: scarce paper and ink put a premium on concise thought. They were made to be read by anyone with an education which, by today's standards, would be somewhere in the 5-6th grade level. Yet it remains untaught, unviewed and, to this day, the population remains ignorant of these vital pieces the Constitution references in its main body text. Not an Amendment, but in the main body of the work itself: a fundamental underpinning of how the United States is to work.

Apparently those teaching school and those given oversight and those elected to get those to do oversight... they all think this is unimportant. You are meant to forget it by not having it taught, or if you learn of it, you are to treat in only in the most abstruse legal sense. Yet these are in the main body of the Constitution and more primary than Amendments. This is part of the guidance on what America can do.

Forget them.

Starting with the inexplicit is the inheritance by Common Law, but also trade law between Nations. Here are the portions of the US Constitution that deal with this.

Article I, Section 8

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;


To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;


To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;"
Article I, Section 9

"No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."
Article I, Section 10

"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
Article II, Section 2

"The President shall be Commander in Chief of the Army and Navy of the United States, ...


He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
Article III, Section 2

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; [..] --to all Cases of admiralty and maritime Jurisdiction; [..] and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
The highlighting marks the implicit law sections, carried over from the Common Law of England and via the trade laws that had been defined before the founding of the United States. This area of law is the Admiralty jurisdiction of the United States, and it has its foundations in the English Common Law in the Black Book of the Admiralty. To get a better understanding of the role this 14th century book plays, let me offer an excerpt of Courts of Admiralty in Colonial America (Carolina Academic Press, Durham, NC, 1995) [pdf reprint here]], Chapter 1, p. 4 on Substantive Law [note abbreviations for this piece are: Lord High Admiral of England (“LHA”), High Court of Admiralty (“HCA”)]:
Courts of admiralty administer the specialized law of the sea called “admiralty law” or “maritime law.” This law has no connection, in history or in principle, with the common law.[36] In England it has always been referred to as the “civil law,” in the sense of “continental law” in contrast to the common law.[37] Basically this is Roman law onto which have been engrafted concepts and procedures developed by merchants in European ports of the Mediterranean, Atlantic Coast, North Sea and Baltic. An important part of maritime law thus acquired the name “Law Merchant.” Many principles of this ancient and specialized area of law are still with us today.38 An example is the law of charter parties.

The common law of England originated in its feudal society, with the great additional influences in the 11th century of the Norman Conquest and in the 18th century of a developing market economy and the Industrial Revolution that continued into the 19th century. The maritime law, on the other hand, originated in the practices of merchants along the southern, western and northern coasts of continental Europe. Gradually, this “Law Merchant” was absorbed into the continental or “civil” law which had its own roots in the Roman law. Beginning in about the 13th century the law maritime commenced its immigration to England, a process that has never completely ceased.[39] This cross-Channel transplant was welcomed by the Court of the High Admiral (later, the HCA), which was taking form about 1360 for reasons of commercial convenience. English merchants, who were beginning to deal in international trade, needed a substantive law that had international recognition and uniformity. They also needed a procedure of summary justice that would resolve commercial disputes promptly and allow them to get back to sea. The law merchant and the law maritime of continental Europe satisfied these two needs; the common law did not.

Fortunately, this medieval commercial law was codified in some of the major ports of the Western World. The most important were the Consolato del Mare of Barcelona, the Rolls of Oleron (a French Atlantic island) and the Town-Laws of Wisby (a Swedish port in the Baltic). Other codes originated in the ports of Pisa (now Italy), Damme, Flanders (now Belgium), and Hamburg and Lubeck (now Germany).[40] These codes, and many other maritime laws and regulations, are preserved in the famous Black Book of the Admiralty which originated about 1450 as a form of manual for the judges and practitioners in the HCA.[41]
In essence, the beginning of international law starts with the Roman Empire, as this form of trade law was an outgrowth of the practices of Rome. As trade grew in old Roman holdings, that form of law was changed by localities to make a new merchant law of trade. This form of law has peculiarities to it not seen in Common Law, such as speedy trial or even the absence of a defendent at trial. Admiralty Law is trade law for commerce, at heart, and a view towards swift and sure justice so as to not unfairly impede merchants who had done no substantive wrong or to assuredly bring in those who had done such wrong. The Black Book of the Admiralty is one of the first pieces of International Law as it serves as compendium of multiple maritime trade laws and regularizes them by the fact of having them together in one book.

Who *couldn't* make a good two week history class on that alone? What youngster in their right mind would want to pass up knowing about an important Black Book? What with all the fantasy stories going on and a name like The Black Book of the Admiralty, a half-way decent teacher could make this a romp through trade, war, pirates, and other such fun things to finally get into why this becomes a source of international law. And yet it is as vital to our understanding of ourselves today as it was when it was compiled: not only were laws regularized by common collection and distribution, but the basis for how to *make* such law starts there. This area of law also covers Privateers and the implications of Letters of Marque and Reprisal, and how they are viewed and utilized. Similarly as the Admiralty Court, as a jurisdiction within Common Law, came about, the basis for understanding what the responsibilities of individuals were to this common law of the sea would become a factor in later courts.

In one of the wonderful marvels of the modern world, the 1911 Encyclopedia Brittanica is available freely as it is out of copyright, and it has some of the best entries on Admiralty Jurisdiction and Law around. These things do not change much over time, and I will cover that in a bit, but where else can you get an entry on that jurisdictional view like this in the modern day:
Marsden, Select Pleas of the Court of Admiralty, Selden Society, London, 1892 and 1897; Zouch, Jurisdiction of the Admiralty of England asserted; Robinson, Collectanea Maritimes; Brown, Admiralty; Edwardes, Admiralty; Phillimore, International Law, vol. i., vol. iii. part xi.; Pritchard, Admiralty Digest, tit. Jurisdiction. (W. G. F. P.) United States The source of admiralty jurisdiction in the United States is Article 3, � 2 of the United States Constitution: - "The judicial power shall extend to all cases of admiralty and maritime jurisdiction." The United States Supreme Court has declared that by virtue of these words the admiralty jurisdiction extends not only to the high seas but to the great lakes and the rivers connecting them, and to all public navigable waters in the United States (the "Genesee Chief" v. Fitz-Hugh, 12 Howards U.S. Rep. 443), including even interstate canals (Ex. p. Boyer, 109 U.S. Rep. 629, the "Robert W. Parsons," [1903] 191 U.S. 17), and is not confined to tide waters. The American colonies had vice-admiralty courts with an admiralty jurisdiction equal to the largest claimed by the English admiralty courts even under Edward III. When they became states they delegated to the federal government their several "admiralty and maritime jurisdiction," using these words in the sense understood in every country in Europe, England excepted, and in the sense in which they had then been used in the colonies for a long time, and without reference to the very narrow jurisdiction of the English admiralty courts then existing (Waring v. Clark, 5 Howards U.S. Rep. 441).

It is settled as to the United States admiralty jurisdiction not that it is "co-equal with that of the original English, or that of continental European admiralty, but is rather that defined by the statutes of Richard II., under the construction given to them by contemporary or immediately subsequent courts of admiralty" (2 Parsons Adm. 176), and that it embraced all maritime contracts, torts, injuries or offences (De Lovio v. Boit, 2 Gallisons Rep. 398; Waring v. Clark, 5 Howards U.S. Rep. 441), and that it has never been restricted by the action of the common law courts as in England under Lord Coke (2 Parsons Adm. 166 n.; Waring v. Clark; De Lovio v. Boit). Original admiralty jurisdiction was by the Judiciary Act of 1789 (U.S. Rev. Stats. � 563) granted to the United States district courts exclusively, except that concurrent original jurisdiction was given to United States circuit courts over seizures for slave trading, and condemnations of property used by persons in insurrection (� 62 9; � 5309), and in the coolie trade (� 2159), and by the act of the 3rd of March 1901; the supreme court of the District of Columbia is given the same jurisdiction as the district and circuit courts. The Supreme Court of the United States has no original jurisdiction in admiralty. All suits are brought in the first instance in the district court. Appeals lie, both on the law and on the facts, from a final decree of that court to the circuit court of appeals only, except in cases involving the jurisdiction of the court, the constitutionality of a law of any state or of the United States, or the validity or construction of any treaty of the United States, and except cases of prize and capital or infamous crime, in which cases of appeal lies directly to the supreme court. In cases of gravity and importance the Supreme Court may by certiorari review the judgment of the circuit court of appeals, but such cases are rare (re Lau Ow Bew, 141 U.S. Rep. 587; Benedict's The American Admiralty, � 607). Formerly the Judiciary Act authorized an appeal from the district court to the circuit court, and thence to the Supreme Court. But the act of the 3rd of March 1891 (Ch. 517) abolished this and created the circuit court of appeals, making it the final appellate court in admiralty, except as above stated. In any case where the district judge is unable to perform his duties or is disqualified by reason of interest or of relationship, or has acted as counsel for one of the parties to the action, it may be removed to the circuit court in that district (U.S. Rev. Stats. �� 587, 589 and 601). These are now the only cases in which admiralty suits can come before the circuit court (Benedict's Adm. � 321).

The subject matter in cases of contract determines the jurisdiction (the "General Smith," 4 Wheaton U.S. Rep. 438), and not the presence or absence of tide, salt water, current, nor that the water be an inland basin or land-locked, or a river, nor by its being a harbour, or a port within the body of the county, nor that a remedy exists at common law. The admiralty courts have jurisdiction over all matters that concern owners and proprietors of ships as such; possessory actions and petitory actions to try title of a ship; cases of mariners' wages, wharfage, dockage, lighterage, stevedores, contracts of affreightment, charter parties, rights of passengers as such (the "Moses Taylor," 71 U.S. Rep. 411), pilotage, towage, maritime liens and loans, bottomry, respondentia and hypothecation of ship and cargo, marine insurance, average, jettison, demurrage, collisions, consortship, bounties, survey and sale of vessel, salvage, seizures under the laws of impost navigation or trade, cases of prize, ransom, condemnation, restitution and damages; assaults, batteries, damages and trespasses on the high seas and navigable waters of the United States; but not suits in rem for duties (Benedict's Adm. � 303a).


The admiralty courts have jurisdiction over crimes and offences committed upon vessels belonging to citizens of the United States on the high seas or any arm of the sea or any waters within the admiralty and maritime jurisdiction of the United States (U.S. Rev. Stats. � 5339). High seas include the great lakes. (U.S. v. Rogers, 150 U.S. 249). (J. A. BA.)
And as the US Court system uses stare decisis, or precedent to guide future doctrine, in adjudicating cases, this entry is just as relevant today as it was when it was printed. This is a major part of the United States outlook as a Nation and the strangenesses seen in the Admiralty can still show up to this day. That said the US, when it became a Nation, did the one thing that England had not done with Admiralty law: we made a record of the decisions so that precedent could be set. Great Britain would follow suit in the 19th century and as the basis of Admiralty law has a high degree of similarity between the US and Great Britain, decisions on similar cases in Great Britain could give guidance in the US due to the underlying basis of the law itself.

This underlying basis is the second part of the things you aren't taught about the US Constitution and what it has in it by reference, and is an extremely important part of how the US functions as a Nation and how we understand ourselves to be a Nation. For that I will look back at Courts and Admiralty in Colonial America:
For completeness a few words should be said about the substantive law of prize. It is unique in several respects. Obviously there is nothing comparable in the common law, but it is surprising to find that the medieval codes do not touch the subject. Prize law involves the law of nations, of war, of neutrality, of nationality, of capture, etc. The classic writers are Vattel, Grotius and Puffendorf. Dr. Browne has chapters on the law of nations (I) and the law of the prize court (VII). Henry Bourguignon thoroughly discusses the law of prize as developed by Sir William Scott, the greatest of all prize judges.

Certain unique features of the substantive instance law find no counterpart in the common law. Not all of these, however, were characteristic of the admiralty in the 17th or 18th centuries but developed in the 19th or even 20th century.
This now transitions us to the *other* law that is mentioned in the Constitution by name:

Article I, Section 8

"To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;"
The Law of Nations is the system developed to give a system of how Nations are to act with respect to each other, what their duties and responsibilities are, and what individuals are to do with regard to Nations. When one runs across a text, by name, in the US Constitution as specific citation of where Congress is to make law and for what offences you would *think* that someone would take notice of it. Congress certainly did writing the Piracy code and other Felonies on the high Seas.... but it never did get around to Offences against the Law of Nations outside of that. Yet, by the sentence construction it is clear that Congress gets to define *both* the high Seas portion (Piracies and Felonies) AND more general Offences against the Law of Nations.

There are two very good basis for text to understand how the Law of Nations works and its impact on the US. The first of these, quixotically, is not the main and important text, but a sub-part of another text that has high degree of impact on the US due to its standing for English Common Law. Here we get a text referenced in Court decisions, but I cannot, for the life of me, ever remember it being taught in any course in my sojourn through education. This is Blackstone's Commentaries on the Laws of England, 1765-1769 (a free text from scanned source with need to be deciphered a bit at the Avalon Project, and it does need some study to remember letter replacement and such; better edited text at The Laws of Nature And Nature's God). While a compilation of a long series of lectures on the law of England and how it worked, this also serves as one of the fundamental outlinings of Common Law that would serve as a basis of later views on the law. The founding generation used this as a reference when constructing the Constitution, although indirectly: it is never mentioned.

From Blackstone we get a view on Public Wrongs in Book 4, and Chapter 5 Of the Law of Nations:

THE law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world;1 in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance frequently occur between two or more independent states, and the individuals belonging to each.2 This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can; and, in time of war, as little harm as possible, without prejudice to their own real interests.3 And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest; but such rules must necessarily result from those principles of natural justice, in which all the learned of every nation agree: or they depend upon mutual compacts or treaties between the respective communities; in the construction of which there is also no judge to resort to, but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject.
Not to worry, the law of nations actually *is* written down. That said, this view is one that examines the fact that treaties between Nations determine their course with respect to each other. No third party, unless otherwise given by treaty, is the judge over the adherence to such a treaty. Nations enter into treaties voluntarily and hold each other accountable based on the treaty designed by them. This is a primary form of intercourse between Nations and outside of treaties only the more generalized law of nations applies, and there are some things which are basic to Nations that no treaty may remove: for Nations to enter into such treaties, they must have foundation before that entry and ability to freely leave such treaties when they no longer suit a Nation.

When Nations enter into treaties, however, their citizens are bound by such treaties. From that follows that citizens who break such laws are breaking a civil law created amongst Nations or the very sovereign foundations of the Nation State itself. Blackstone looks at the three categories of offense against the law of nations as follows:

THE principal offense against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds; 1. Violation of safe-conducts; 2. Infringement of the rights of ambassadors; and, 3. Piracy.
Each of these three are primary to being able to hold discourse between Nations or to having a Nation without having its sovereignty violated. Sovereign Nations that break safe-conducts or infringe on the rights of ambassadors can give rise to war because of those things ALONE. Nations that disrespect other Nations in that way either during wartime or during peace, are liable to have war waged upon them because of that basic violation: a Nation that has given its word to respect safe-conduct of anyone through its territory and that then BREAKS that word, is committing an act of war.

Similarly as ambassadors are physical representatives of a sovereign Nation, they are to be given all due respect of that representation. Standard legal proceedings are halted in the cases where ambassadors are involved so as to settle the type of offense that is given. Truly, this does get to be quite a complex area of the law, but the basis for the sanctity of ambassadors is long-standing and the tradition of non-prosecution of offenses, save for true acts of war committed or sanctioned by the ambassador, are normally put aside. That is a very over-generalization, of course, but serves as a rule of thumb.

The third part, as a view of the law of nations, is one that utilizes piracy as a category to fit those warlike offenses committed by individuals without sanction from any Nation. The view of English law is to restrict this entirely to robbery and depredation upon the high seas, but even with that there is some variance of attitude of the activity itself. Strictly speaking Blackstone puts the specific of what we know as piracy, robbery and depredation on the high seas, with something more general:
LASTLY, the crime of piracy, or robbery and depredation upon the high seas, is an offense against the universal law of society; a pirate being, according to Sir Edward Coke,10 hostis humani generis [enemy to mankind]. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community has a right, by the rule of self-defense, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, any invasion of his person or personal property.

BY the ancient common law, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance; and by an alien to be felony only: but now, since the statute of treasons, 25 Edw. III. c. 2. it is held to be only felony in a subject.11 Formerly it was only cognizable by the admiralty courts, which proceed by the rule of the civil law.12 But, it being inconsistent with the liberties of the nation, that any man's life should be taken away, unless by the judgment of his peers, or the common law of the land, the statute 28 Hen. VIII. c. 15. established a new jurisdiction for this purpose; which proceeds according to the course of the common law, and of which we shall say more hereafter.
This is where the Admiralty law leaves off, by and large, save for when pirates have warrant put out against them and their vessels and those that support them. At that point the Prize Court of the Admiralty would still be involved. Piracy is against the law of society, but having a yet more general distinction of 'enemy of mankind'. That more general distinction is not one that is limited to just piracy, in and of itself, but is a more general description of those who wage war for themselves, even if robbery is not involved. That is 'depredation', or war for the sake of something other than monetary gain. When delimited to the high seas, it is a civil crime if captured.

What the English law does not look at are those that commit 'depredation' on land: the illegitimate use of warfare that is not for robbery, but for the act of war itself. When unsanctioned by any Nation that, too, would fit under 'depredation' but the English law does not address that beyond piracy. Normally it is a reason to go to war against a Nation, when done by a Nation, but by individuals and groups that have 'renounced all the benefits of society and government' while on land, especially when they are foreigners unattached by their actions to any Nation, just what, exactly are they?

Yes these things are not taught in school, are they? This raises the next untaught text the one directly mentioned in the Constitution and given by Blackstone: Law of Nations. Capitalized as more than just common agreement, that now leaves the actual document of Law of Nations to be addressed. This is the work of Emmerich de Vattel, Law of Nations, 1758, via Constitution Society. So we are up to three works not taught in school, but that have a major impact upon the actual law in the United States, one by inference, one by association with the English Common Law and the final the widely accepted work of all European Nations on how to behave as Nations, and none of these were taught to me while I was actively in school. When did these works go from actual, scholarly teaching to being dropped from the curriculum of everything but law schools? They each do have bearing upon the law, yes, but they are also, each of them, historical basis for how the United States works and views itself as one Nation amongst many. In that long era before the United States was even a major power in the world and before it was a superpower, this was how it viewed itself and, to this day, is how we still approach the world at large.

And while the Black Book of the Admiralty is more towards recounting the instances of law and how it is made at sea, which is highly fascinating on its own, Law of Nations now shifts to regularize those things which Blackstone would use to view the English Common Law. I move from the interpreted to source text so that we can see how this major work influenced the English Common Law and how the Admiralty law still, even then, was a separate jurisdiction even when it had shifted to the Common Law. That shift between the 14th and 18th centuries is crucial as the United States traces its Admiralty authority to the 14th century, and utilizes only preceptual outlook on the Admiralty law by England as there was no written record of the rulings between the 14th and 19th centuries in England. The United States would, in particular, not apply fully the views of Coke, and would differentiate the US jurisdictional views from those of Britain by doing so. With that the US would look towards the Law of Nations as a major supplier to help define Piracy and recognize that there were *other* Offences against the Law of Nations that England had left unaddressed.

Basically, the US gave itself the most leeway possible to interpret the law and not be hindered by the views of Monarchs and the unrecorded history of the Admiralty courts. Thus the Law of Nations and the Offences against Nations comes to the forefront as the third and most vital text for the US Constitution. In giving this citation by name and capitalizing the name, as seen in for an actual book or set of same (which Law of Nations is a multivolume set) and putting forth that Law of Nations defines crimes against Nations in it, the founders elevate this text up to the Constitutional level. While the US Constitution will refine the views of the United States towards itself and how it fits into the framework of this common view of Europe, we would also differentiate ourselves on how the US applies those views. But the actual crimes in Law of Nations is left up to Congress to define and enact: that is the direct duty given by the founders to Congress. And Piracy only begins to scratch the surface of that.

To see its impact, one can look to the founding era and find the references to Law of Nations in the works of Federalists and Anti-Federalists: this was an important view of the world and they incorporated it into their arguments on the Constitution. So some excerpts follow to let us see what this work did in their thinking about the nation of that era.

James Madison in Federalst No. 42, 22 JAN 1788 [bolding in original, italics mine for emphasis]:
The second class of powers lodged in the general government consist of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations.

This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations.


The power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations belongs with equal propriety to the general government, and is a still greater improvement on the Articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper.
Notice that there is an expansive view of the law of nations for self-protection against other forms of offenses against the law of nations. That is, exactly, what Madison sees under the Blackstone view of this:

so that every community has a right, by the rule of self-defense, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, any invasion of his person or personal property.
Extracted from the previous for emphasis, to show how Madison utilizes the Common Law view of Law of Nations and then seeks to put that forth in the Federalist argument for the Constitution. As a Nation the US has the right to define these other offenses against the law of nations and to protect the nation from those practicing such via civil law. The Anti-Federalists also looked to this work for such things as press freedom, as seen in Cincinnatus I: To James Wilson, Esquire, 01 NOV 1787 [itals in original, bolding mine]:
You instance, Sir, the liberty of the press; which you would persuade us, is in no danger, though not secured, because there is no express power granted to regulate literary publications. But you surely know, Sir, that where general powers are expressly granted, the particular ones comprehended within them, must also be granted. For instance, the proposed Congress are empowered—to define and punish offences against the law of nations—mark well, Sir, if you please—to define and punish. Will you, will any one say, can any one even think that does not comprehend a power to define and declare all publications from the press against the conduct of government, in making treaties, or in any other foreign transactions, an offence against the law of nations? If there should ever be an influential president, or arbitrary senate, who do not choose that their transactions with foreign powers should be discussed or examined in the public prints, they will easily find pretexts to prevail upon the other branch to concur with them, in restraining what it may please them to call—the licentiousness of the press. And this may be, even without the concurrence of the representative of the people; because the president and senate are empowered to make treaties, and these treaties are declared the supreme law of the land.
Here is a very interesting view of the law of nations, and well worth examining. In how things worked out the Piracy laws are in the US Code and utilized there via the Admiralty jurisdiction. What is fascinating is that the direct, and blunt reading of the words of the Constitution, as Cincinnatus points out, is that Congress gets to define and punish piracy on its own. That reasoning, however, is belied by the Admiraly jurisdiction and Common Law views, that a tribunal or other judge (with or without jury! yes, that is *also* part of the Admiraly heritage) is to rule on such things.

But that is a tricky part as the Admiralty courts had two tracks of power: civil and military. At that point in history there was still a separate Prize court system for military captures, and that, while related under the Admiralty, served as a punishment court for things like piracy. This attempt to differentiate those systems by combining them into the Admiralty jurisdiction as a whole and regularize them is seen in the 'define and punish' language. While Cincinnatus puts forward only the treaty and trade end, the broader view of definition and assigning punishment belongs to Congress. By shifting the entirety of Piracy and other felonies on the high seas to Congress, there is, at that era, a necessity not only to give definition to those things, but assign the punishment scale: felonies needed to be graduated by type of crime and only Congress can do that.

The broader point, however, is extremely well taken: a powerful or charismatic President and a sycophantic Senate could abuse their treaty power and the need to ensure that such can be reported on falls to the House to guard the overall laws and privileges of that body as part of Congress. Did you think this was a *modern* worry?

Again, this stuff just isn't properly taught and in my school career the exposure to the Federalist Papers, which everyone lauds, was minor and my exposure to the coherency of the Anti-Federalist side and other Federalist supporting documents was *nil*. That does bring up a major problem in presenting American History as 'static': by making it that all of the arguments had been addressed and settled we spend forever trying to bring up 'new' arguments that, in actuality, have remained unsettled since the founding era. When we talk of the Presidential powers as Head of State, we are not talking some nebulous concept, but talking to a body of work that those creating the Constitution understood at heart. They CITE IT in their works and in the Constitution itself and utilize it in their understanding of how this republic fits into the greater continuum of nations. President Washington, himself, would utilize this in his approach to the world, and The Proclamation of Neutrality (22 APR 1793) would be based upon the President's powers as Head of State, hear provided in full [bolding mine for emphasis]:


Whereas it appears that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, of the one part, and France on the other; and the duty and interest of the United States require, that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerant Powers;

I have therefore thought fit by these presents to declare the disposition of the United States to observe the conduct aforesaid towards those Powers respectfully; and to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition.

And I do hereby also make known, that whatsoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing, aiding, or abetting hostilities against any of the said Powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States, against such punishment or forfeiture; and further, that I have given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the Powers at war, or any of them.

In testimony whereof, I have caused the seal of the United States of America to be affixed to these presents, and signed the same with my hand. Done at the city of Philadelphia, the twenty-second day of April, one thousand seven hundred and ninety-three, and of the Independence of the United States of America the seventeenth.

April 22, 1793
I have seen longer proclamations on the need for apple pies and motherhood! But the import is direct and clear and the *expectation* is that citizens will damned well know the law of nations and abide by it. And if you *didn't know* you were to find out.

Which, of course, finally gets to Law of Nations! What President Washington is referring to comes from Book III:
§ 4. It belongs only to the sovereign power.(137)

As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature, — the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it, — that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).

Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.1 Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.
Quick and to the point, isn't it? In the US, as we have separated out the Foreign Policy from War Declaring powers, the President is fully within his power to put forward that he is not looking to partake in a war and that NONE of the citizens of the Nation may do so. But there is more to it than that! Lets look a bit further along in Book III:
§ 15. Enlisting in foreign countries.

As the right of levying soldiers belongs solely to the nation or the sovereign (§ 7), no person must attempt to enlist soldiers, in a foreign country, without the permission of the sovereign; and, even with that permission, none but volunteers are to be enlisted; for the service of their country is out of the question here; and no sovereign has a right to give or sell his subjects to another.

The man who undertakes to enlist soldiers in a foreign country, without the sovereign's permission, — and, in general, whoever entices away the subjects of another state, violates one of the most sacred rights of the prince and the nation. This crime is distinguished by the name of kidnapping, or man-stealing, and is punished with the utmost severity in every well-regulated state. Foreign recruiters are hanged without mercy, and with great justice. It is not presumed that their sovereign has ordered them to commit a crime; and, supposing even that they had received such an order, they ought not to have obeyed it, — their sovereign having no right to command what is contrary to the law of nature. It is not, I say, presumed that these recruiters act by order of their sovereign; and with respect to such of them as have practised seduction only, it is generally thought sufficient to punish them when they can be detected and caught: if they have used violence, and made their escape, it is usual to demand a surrender of the delinquents, and to claim the persons they have carried off. But if it appears that they acted by order, such a proceeding in a foreign sovereign is justly considered as an injury, and as a sufficient cause for declaring war against him, unless he makes suitable reparation.
President Washington is reminding folks of this paragraph and his right to deny citizens the ability to enlist in foreign armies or help foreign nations. Now imagine if we applied *this* as Congress can and should do, against terrorist recruiters. They are, actually, worse than those recruiting for a foreign nation as they are seeking to entice people to lawlessness on an international scale. The offense of doing that has an actual punishment under the law of nations: hanging without mercy and great justice.

Wouldn't THAT be a lovely law to have for those recruiting for Hezbollah, al Qaeda, HAMAS, and so on?

Congress DOES get to do that, Art. I, Sec. 8:
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
There you have a stated Offence against the law of nations and its REMEDY. Congress can do that for foreign recruiters AND non-state military recruiters or those supporting non-state military actors. They are given that right EXPLICITLY by the US Constitution and they are to follow the Offense in question with its remedy. Define and punish.

That puts an entirely different character on those 'charity' front organizations supporting terrorism, doesn't it?

Too bad you weren't taught this in school.

That brings us up to actual war time powers a Nation may use under declaration of war or when attacked by outside forces so as to be at war. This is still in Book III [itals in original, bolding mine]:
§ 67. It is to be distinguished from informal and unlawful war.

Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

§ 68. Grounds of this distinction.

In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.
Yes, terrorism is *defined* under the law of nations! It is 'informal or predatory' war not sanctioned by any sovereign nation. It is depradation undertaken without any right and any cause given is illegitimate: they have no basis as a non-sovereign to address a grievance in this way. And do notice that 'summary justice' is done to those practicing it, that is the right of nations and peoples to have freedom from predators in human form. That is an actual sanction that Congress could levy... or just treat the like under the Piracy code with life imprisonment.

And this brings us to my favorite citation of the last few weeks, one that gets repeated perhaps too often, and yet bears repeating. It is this power to protect a nation from predators that is given to the sovereign during wartime. When illegitimate and illegal war, under law of nations, is done to the nation, she has the right to protect herself and ask for the support of all other nations in ending this scourge. When such predators are captured on the battlefield, the President, as Commander in Chief of the Armies and the Navies has wide jurisdiction and prosecution against those that are predators. This is something that past Presidents have put forth and utilized, and it was, for many decades, part of the Field Manual of the US Army. Here is the actual article in question:
Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.
Perhaps the most succinct view of terrorism given by a President, although he did not even call it such. It was a form of illegitimate war and he addressed it as such. Which President is it that had this view, and promulgated it? A President who knew justice and injustice, and one greatly lauded for his wisdom and insight into humanity and America:

Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.
The Great Emancipator. President Lincoln understood the law of nations and *his* responsibility to the nation to protect it under that law. He calls such being by a few of their law of nations names: highway robbers, pirates.

And you weren't taught that, either.

How can we make decisions as a Nation and a People if we have no idea what it means to have a Nation by the People?

Apparently this is far too much a burden for the everyman to have, so it is not taught save at the upper echelons of law schools. Yet it is something that was widely known by Americans to found this nation and understand the meaning of that and what the responsibilities of individuals and the nation *are*.

I call on Congress to carry out its DUTY to enforce the Law of Nations and put down those Offenses and their punishment so that this Nation can be protected.

I know what that means.

Do you?

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