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

Memoranda

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.

Decr. 5. 1792.

MS (DLC); entirely in Randolph's hand.

  1. Randolph first wrote “These courts have” before altering the passage to read as above.
  2. Preceding two words interlined in place of “federal tribunals.”