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* * * *
The Define and Punish Clause provides that “The Congress shall have Power . . . To define and punish Piracies and Felonies Committed on the High Seas, and Offenses against the Law of Nations.”
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Because immigration is movement across national boundaries, the reference to “the Law of Nations” seems to invite consideration of whether the clause authorizes Congress to restrict immigration. Yet very few commentators have accepted that invitation. Those discussing the Define and Punish Clause almost invariably neglect to address immigration,
A few commentators have contended that the Constitution does not grant the federal government any authority over immigration at all—that the subject is one reserved to the states.
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Although this provision usually is identified as a concession to the slave trade, the term “Migration” commonly was applied to free persons rather than slaves.
The Committee will observe the distinction between the two words migration and importation. The first part of the clause will extend to persons who come into the country as free people or are brought as slaves. But the last part extends to slaves only. The word migration refers to free persons; but the word importation refers to slaves, because free people cannot be said to be imported. This clause likely affected emigration as well, a process Founding-era sovereignties sometimes restricted. V However, the surrounding language and history rendered it probable that the drafters thought of the clause as applying only to immigration.
Both the Supreme Court and commentators have cast about for an answer to that question.
Christopher G. Blood, 92 U.S. 275 (1875); 92 U.S. at 280. The Foreign Commerce Clause reads, “The Congress shall have Power . . . To regulate Commerce with foreign Nations . . . . ” U.S. Const. art. I, § 8, cl. 3. Robert G. Natelson, 130 U.S. 581 (1889). U.S. C Most recently, the Court has seemed uninterested in undertaking a substantive inquiry into the sources of the powers to exclude and expel. It has noted a number of sources of constitutional authority pertaining to immigration generally, including the naturalization powers, the foreign relations powers, and the war powers.
Yet the Court's critics have done no better.
It has long been noted that the Constitution lacks a clear textual basis for full congressional control over immigration. Some aspects of an immigration power may be implied from the Naturalization Clause, the war powers clauses, the Foreign Commerce Clause, or perhaps even the Migration and Importation Clause, but Congress regulates a vast array of immigration-related matters and not all can be easily implied from these other substantive powers. [T]he immigration laws lack clear textual support in the Constitution. Some aspects ... may be implied from the Naturalization Clause, the war powers clauses, the Foreign Commerce Clause, or perhaps even the Migration and Importation Clause, but Congress regulates a vast array of immigration-related matters and not all can be easily implied from these other substantive powers. 1 S Except insofar as an alien expelled from the country under the Act was barred from returning. 1 S
Most commentators do agree that the federal government's power to regulate immigration is implied rather than express, but this still begs the question of its ultimate source. On that issue, commentators divide: Some suggest “inherent sovereign authority,”
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For the most part, therefore, the only thing the Supreme Court and most commentators agree on is, “The power's in there somewhere!”
In 2000, Christopher Blood, a law student, wrote about the then-famous case of Elian Gonzalez, a child captured in a federal raid and deported.
Blood offered a single citation (not really on point) to the work of Hugo Grotius,
This article musters additional evidence and applies Founding-era interpretive methods
Robert G. Natelson,
The relevant portion of the Define and Punish Clause provides that Congress may “define and punish . . . Offenses against the Law of Nations.”
U.S. C Robert G. Natelson,
The origin of the phrase
Consistently with the older meaning of “nation,” the eighteenth century law of nations sometimes addressed the rights of sub-sovereign ethnic groups.
S The In England, the 6 E
Founding-era scholars divided the law of nations into two broad categories. The B Vattel refined the classification scheme into (1) the It may help to understand Vattel's scheme to compare his three principal categories with three categories from our private common law: (1) the law of torts (which usually operates without regard to consent), (2) contracts (based on real consent, express or inferred [“implied”]), and (3) quasi-contract and other forms of restitution (based on fictional consent).
Although the law of nations affected primarily sovereigns and ethnic groups, it also could impact individuals. The Offences against this law are principally incident to whole states or nations; but, when committed by private subjects, are then objects of the municipal [i.e., internal] law. Crimes against the law of
The rules impacting individuals primarily were imposed by local or “municipal” law.
1 W But where the individuals of any state violate this general law [of nations], it is then the interest as well as duty of the government under which they live, to animadvert upon them with a becoming severity, that the peace of the world may be maintained. For in vain would nations in their collective capacity observe these universal rules, if private subjects were at liberty to break them at their own discretion, and involve the two states in a war.
The crimes listed in 21 J. C
The bifurcated aspect of the law of nations—general standards “defined” by more specific rules—occasioned a brief dispute at the 1787 Constitutional Convention. The delegates were drafting what became the Define and Punish Clause. The question arose as to whether they should apply the word “define” to the phrase “the Law of Nations.” James Wilson, considering the law of nations as merely a statement of natural law, objected: “To pretend to define the law of nations which depended on the authority of all the Civilized Nations of the World,” he said, “would have a look of arrogance that would make us ridiculous.”
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The convention agreed with Morris.
Whether Congress may “define” limits on immigration and “punish” infractions depends on whether the law of nations, as understood by the Constitution's ratifiers, encompassed immigration restrictions and whether a breach of those restrictions was seen as an “Offense” against the law of nations.
The migration rule of Article I, Section 9 demonstrates that Americans were conscious that restrictions on immigration might one day be imposed. However, that possibility provoked only slight notice during the ratification debates
“Deliberator,” F Congress may, by imposing a duty on foreigners coming into the country, check the progress of its population; and after a few years they may prohibit altogether, not only the migration of foreigners into our country, but also that of our own citizens to any other country. B
During the Founding era, American knowledge of the law of nations was shaped by treaties and treatises. Treaties commonly addressed the topic of cross-border migration, but usually emigration rather than immigration.
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One indication of whether the Founders considered a treatise authoritative is whether it appeared on a January 24, 1783 list of recommended books complied by a three-man committee of the Confederation Congress. The committee members were James Madison of Virginia, Hugh Williamson of North Carolina, and Thomas Mifflin of Pennsylvania—all three of whom were to serve among the Constitution's framers.
One section of the list was entitled “Law of Nature and Nations.” It included (1) several works on natural law, (2) several on aspects of the law of nations not related to immigration (such as the law of the sea and rules pertaining to ambassadors), and (3) five works devoted specifically to the law of nations. The committee report listed those five as—
“Wolfius's Law of Nature;” “Grotius’ Law of Nature and Nations;” “Vattel's Law of Nature and Nations;” “Puffendorf's Law of Nature and Nations with notes by Barbeyrac;” and “Burlamaque's [ 24 J. Cont. Cong. 83–84 (Jan. 24, 1783).
In addition, the committee recommended that Congress acquire a sixth work relevant to the law of nations: William Blackstone's
Among these authors, the earliest in time was Hugo Grotius, who lived from 1583 to 1645. “Hugo Grotius” is a Latinized version of his Dutch name, Huig de Groot. Grotius was endowed with an astonishing intellect. That intellect, and his conscientious application, made him one of the leading figures of his age.
See generally V The story of Grotius’ escape is riveting. Central to the narrative is the courage, loyalty, and cleverness of his wife, Maria van Reigersberg, and of a young servant woman named Elsje van Houweing. V
The Netherlands never recalled Grotius from exile. He spent most of the remainder of his life in Paris. For many years he served the Swedish crown as its ambassador to France.
Grotius’ most important literary production was the three-volume set identified by the congressional committee as “Law of Nature and Nations.” It was published in 1625, initially in Latin, under the title,
Despite the fact that Grotius’ treatise was over 150 years old when the Constitution was written, members of the founding generation still consulted it. Particularly popular was the edition translated and annotated by the French academic, Jean Barbeyrac (1674–1744).
Chronologically, the next author on the congressional committee's list was the German scholar Samuel von Pufendorf (1632–1694). (Americans of the founding generation usually spelled his name “Puffendorf.”) Like Grotius, Pufendorf spent much of his life under the protection of the Swedish crown.
The congressional committee referred to Pufendorf's most famous work as “Law of Nature and Nations with notes by Barbeyrac.” Published in 1672, it was composed in Latin under the title
Chronologically, the next author on the committee's list was the German polymath Christian Wolff, who lived from 1679 to 1754. Wolff was a professor at the University of Halle. When forced to leave, he moved to the University of Marburg. Later he served as science adviser to Czar Peter the Great, and eventually returned in triumph to the University of Halle—as chancellor.
In 1749, Wolff published in Latin the
Wolff was less known in America than Grotius or Pufendorf.
Next on the list (again, in chronological order) was the book the committee described as “Burlamaque's Law of Nature and Nations.” Jean-Jacques Burlamaqui (1694–1748) was a natural law professor at the Academy of Geneva. He published his B
“Vattel's Law of Nature and Nations,” as the congressional committee called it, originally was to be an elaboration on the Wolff's treatise,
V V
Vattel published his work in French in 1758 under the title
Although not in the committee's list, one more international law scholar merits our attention. Georg Friedrich von Martens (1756–1821) was a professor at the University of Göttingen, in Germany. In 1789, Martens published M
Martens’ work was not available in time for the constitutional debates, but his period of composition was exactly contemporaneous with those debates. His treatise therefore reflects international law as it stood precisely when the Constitution was written and ratified.
I have omitted as an eighteenth-century authority R
Today most Americans would be hard pressed to identify any legal scholar. This was not as true during the Founding era, due to the extraordinary legal literacy of the American population. Edmund Burke commented on it in his famous Permit me, Sir, to add another circumstance in our Colonies which contributes no mean part towards the growth and effect of this untractable spirit. I mean their education. In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the [First Continental] Congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the Plantations. The Colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone's Commentaries in America as in England. General Gage marks out this disposition very particularly in a letter on your table. He states that all the people in his government are lawyers, or smatterers in law . . . .
Edmund Burke,
Understanding this legal literacy enables us to reconcile two statements about the Constitution that otherwise might seem contradictory: (1) It contained many legal terms of art
R
William Blackstone (1723–1780), the author mentioned by Burke, was perhaps the most influential of all commentators on English law. He served as the first Vinerian Professor at Oxford University, as a Member of Parliament, and as a judge of the Court of Common Pleas.
As Burke suggested, Blackstone was enormously popular in the America. Citizens without direct access to the works of Grotius, Pufendorf, Barbeyrac, Wolff, Burlamaqui, or Vattel more likely had access to Blackstone.
During the eighteenth century, Grotius, Pufendorf, and Vattel all were regularly cited in and by American courts;
Thirty-two citing cases were produced by an Aug. 20, 2022 Westlaw search of the relatively sparse reported pre-1791 American case law. The query “adv: DA(bef1791) & Blackstone” was entered in the Allstates database.
Grotius's and Pufendorf's volumes were being sold in Philadelphia as early as the 1740s.
W W H
Leading Founders relied freely on the authorities considered here. Thus, in the course of his 1774 essay defending the rights of the colonies against Great Britain,
1 T T 1 W 1 W
References to these authorities also appear in the correspondence of John Adams,
John Adams to John Quincy Adams, Jan. 23, 1788, F Abigail Adams to Royall Tyler, Jul. 10, 1784, F Alexander Hamilton, Thomas Jefferson to James Madison, May 25, 1784, F James Madison to Thomas Jefferson, Mar. 16, 1784, F John Francis Mercer to James Madison, Dec. 23, 1786, Founders Online, List of Books Sold to James Monroe, May 10, 1785, Founders Online, at Edmund Randolph to James Madison, Jan. 27, 1784, Founders Online, at 1 F 1 T For a list of references as recorded by the D T “Grotius,”
Other participants in the ratification debates referenced Pufendorf
For a list of references as recorded by the D “Margery,” Letter VIII, Mar. 20, 1788,
Several of these scholars also made their appearance in the state ratifying conventions and associated proceedings. As noted above, James Wilson cited Grotius, Pufendorf, and Vattel at the Pennsylvania convention.
3 E 2 2
We can say with confidence, therefore, that the Founders considered these writers on the law of nations to be reasonably authoritative.
Pufendorf, Barbeyac, Vattel, Martens, Blackstone, and—more obliquely, Grotius and Burlamaqui—all addressed limits on immigration when writing on the law of nations. These authors consistently recognized the prerogative of governments to impose immigration restrictions. That prerogative was qualified in cases of necessity (for example, a ship being driven by storm onto a foreign shore), and in the cases of exiles and fugitives. As to voluntary immigrants, however, all but Grotius—the earliest of the writers—recognized that the power to restrict was nearly absolute. Grotius made an exception for foreigners who wished to settle on barren lands. Later writers rejected that exception.
The remainder of this Part summarizes in more detail the positions of these seven authors.
Hugo Grotius treated the issue of trans-border migration within his wider discussion of the law of nations. On the then-controversial subject of emigration, he wrote that the legal default position was that a person had a right to leave his homeland. However, he added, “[O]ne is not to go out of the State, if the Interest of the Society requires that he should stay in it.”
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In his discussion of immigration, Grotius did not set forth a default position explicitly, but assumed that, absent special circumstances, a person may not immigrate to a foreign nation without permission from the sovereign of that nation. Thus, he wrote, “To receive particular Persons as are willing to remove from one Prince's Territories into another's, is no Breach of Friendship; for this Liberty is not only natural, but has something favourable in it (as we have said elsewhere).”
3
Grotius did offer several qualified exceptions to the rule that immigration requires the permission of the receiving country. One exception applied to those who seek only a short sojourn “on account of their Health, or for any other just Cause.”
2 And if there be any waste or barren Land within our Dominions, that also is to be given to Strangers, at their Request, or may be lawfully possessed by them, because whatever remains uncultivated, is not to be esteemed a Property, only so far as concerned Jurisdiction, which always continues the Right of the antient People.
As we shall see, none of the later authorities agreed with Grotius on that point.
One modern commentator claims that, “Samuel Pufendorf . . . denied to the sovereign a right to exclude aliens, so long as they had lawful reasons, including economic ones, for seeking admission into states.”
Nothing could be further than the truth. Although Pufendorf commended the virtue of hospitality, he made it clear that in cases other than fugitives or exiles, whether a foreigner could immigrate was subject to the decision of the receiving nation. Speaking of travelers, Pufendorf wrote:
The Case is somewhat like that of a private Man, who in his House or Gardens, possesses some rare Curiosity, or other valuable Sight; such an one does not apprehend himself tied freely to let in all Spectators; but whoever is thus gratified either rewards, or at least acknowledges, it as an extraordinary Favour.
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He then expanded the point to include permanent immigration as well as travel:
And farther, it seems very gross and absurd, to allow others an indefinite Right of travelling and living amongst us, without reflecting either on their Number, or on the Design of their coming; whether supposing them to pass harmlessly, they intend only to take a short view of our Country, or whether they claim a Right of fixing themselves with us forever. And that he who will stretch the Duty of Hospitality to this extravagant Extent, ought to be rejected as a most unreasonable, and most improper judge of the Case. * * * * As to our main Question, it is look’d on by most as the safest way of resolving it, to say, That it is left in the power of all States, to take such Measures about the Admission of Strangers, as they think convenient; those being ever excepted, who are driven on the Coasts by Necessity, or by any Cause that deserves Pity and Compassion.
Even in the cases of refugees and exiles, there were limits to hospitality:
Humanity, it is true, engages us to receive a small number of Men expell’d their Home, not for their own Demerit and Crime . . . But no one will be fond of asserting, that we ought in some manner to receive and incorporate a great Multitude . . . Therefore every State may be more free or more cautious in granting these Indulgences, as it shall judge proper for its Interest and Safety.
Pufendorf enumerated factors a state should consider in weighing whether to accept exiles and fugitives. Among these were the fertility of the country, the density of the existing population, whether the prospective newcomers were “industrious, or idle,” and whether they could be located so as to “render them incapable of giving any Jealousy to the Government.”
Pufendorf's position was clear: A state should consider both interest and the duties of humanity, but exactly where it drew the line was a matter for its own discretion. There is no indication that he accepted Grotius’ view that a state was obligated to accept immigrants willing to settle on unused ground.
Jean Barbeyrac's annotations of Pufendorf's immigration coverage revealed no objection to that author's positions. But Barbeyrac's annotations of Grotius's work sharply criticized Grotius's claim that a state must allow immigrants to settle on vacant land:
I am not of our Author's Opinion on this Point; nor can I think the Reason here alledged [ 2 G
Another commentator on Grotius also dissented from the master on this point. In 1707, the University of Edinburgh, Scotland published a “Compendium” (literally, “short cut”—an abridgement) of Grotius's E However, to receive any and all migrants into the state is not only dangerous, but is not a position appropriate for any state; for the purpose of the state is the happiness of its citizens, which is obstructed by the indiscriminate receiving of all and the introduction of foreign customs. In this respect mercy must be tempered, lest we ourselves become objects of mercy to others. And it should be properly considered whether the productiveness of our soil is such as can support them comfortably, whether they are a skillful or lazy group of people who should be admitted, whether the newcomers can be so distributed and located so that they pose no threat to the state. If, moreover, some place is given by us to them for settlement, then it should be accounted an accommodation to them; from which it follows that they can’t take any location they please or that they can occupy any place that happens to be vacant as if it were a matter of right—since no place within our territory can be reckoned without ownership by either private or universal public occupation. Therefore, whatever uncultivated and deserted land is found within the kingdom, then the decision of the authorities awards it to a person who desires it so that it is acquired by the possessors not by occupation but by assignment.
Quoslibet autem recipere peregrinos in civitatem non modo periculosum est, sed nec civitatis cujusq; status id admittit; finis enim ejus est Civium beatitudo, quae impeditur promiscua omnium receptione, & barbarorum morum introductione. Hinc misericordia ita est temperanda, ut nos ipsi aliis non fiamus miserabiles; & probe considerari debet an ea sit agri nostri fertilitas ut commode eos alere possit, solers an ignava turba, quae recipi debet, an advenae ita distribui possint & locari, ut nullum Civitati periculum immineat. Cum porro quicquid a nobis in tales fuerit collatum id beneficii loco ipsis imputare possimus; inde sequitur, ut non ipsi, quae placuerint sibi capere, aut si quid forte vacui loci apud nos jacuerit velut jure suo occupare possint: cum intra Territorium nullus Locus excogitari possit vacuus a proprietate, vel privata, vel publica occupatione universali. Itaq; quicquid inculti & deserti soli in Regno invenitur, id omne arbitrium superioris expectat cui id velit addictum, ut non occupatione sed assignatione possessoribus acquiratur.
Again, the message is clear: As a matter of the law of nations, the extent to which a state must admit immigrants is for that state to decide.
Christian Wolff also has been the victim of distortion by a modern commentator, who claims Wolff adopted “a principle of free movement, subject to several stipulated exceptions within the discretion of states . . . Wolff was instrumental in taking account of political realities by according limited regulatory powers to the sovereign to protect morals, religion, public safety, and public welfare, while maintaining the principle of free migration.”
Wolff's text tells a different story.
Wolff's Latin is dense and idiosyncratic. Although I tried to keep my translations literal, I had to compromise when a literal translation would be inscrutable. W That is:
It follows if a nation (or people) should have ownership of a territory it occupies, it has governance over it, then it is deemed occupied land; or if the ruler of the state according to the rights of the nation or his own rights then it is deemed subjected land. For that reason all others may be excluded by the force of appropriate law. . . No nation or private traveler may assume for himself any private right in the territory of another. Similarly because no traveler can appropriate for himself any right in foreign territory, it is not permitted for any traveler to enter the same contrary to the prohibition of the ruler of the territory, whether on his own account or for any particular business, until the ban has been lifted. Granted that no traveler is permitted to enter against the ban of the lord of the territory, there really is no effect to the ban unless those who are prohibited from doing something are bound by a punishment for doing it.
Like other writers, Wolff was somewhat more forgiving toward exiles. But even as to exiles he permitted denial of residence if there was good reason.
Ultimately, Wolfe's view was that access to a foreign country depended entirely on the will of that country's sovereign.
Jean-Jacques Burlamaqui's work was more about natural and domestic law than about the law of nations, and his treatment of immigration was more oblique than the treatment by most of our other authors. In keeping with the spirit of the times, Burlamaqui believed that immigration should be encouraged:
First then it is evident, that the force of a state, with respect to war, consists chiefly in the number of its inhabitants; sovereigns therefore ought to neglect nothing than can either support or augment the number of them. Among the other means, which may be used for this purpose, there are three of great efficacy. The first is, easily to receive all strangers of a good character, who want to settle among us . . . .
B
Yet, an inference from this statement is that a sovereign could withhold permission to immigrate. The same inference follows from several other statements:
a sovereign may prohibit the importation of foreign commodities;
a sovereign may refuse another country passage over its lands;
once a person entered a foreign country, he is bound by the local laws—presumably including laws against his being there in the first place.
Some confirmation comes from Burlamaqui's statements on
When the Constitution was written, Emer de Vattel's treatise was the most recently-published international law book freely available, and probably the most influential. For that reason—and because some modern commentators have suggested that Vattel's work does not support the power of a sovereign to restrict immigration
Vattel's work comprised four books. Book I was entitled “Of Nations considered in themselves.” A major theme of Book I was the derivation of rules of governance from natural law principles. Among his conclusions:
“A nation or state has a right to every thing that can help to ward off imminent danger;”
V nations may limit or ban imports;
nations may refuse to trade with others;
a nation may—indeed, in some cases, should—restrict emigration;
nations may restrict immigration: “[I]t belongs to the nation to judge, whether her circumstances will or will not justify the admission of that foreigner.”
Vattel's belief that a state may restrict immigration influenced his definition of “inhabitants.” That term included both citizens and “foreigners,
One might object that the title of Book I—“Of Nations considered in themselves”—suggests that it was devoted only to domestic, intra-state law. If so, one might contend, the immigration restrictions listed in Book I could be mere municipal regulations rather than part of the law of nations.
It is true that much of Book I addressed purely domestic questions, such as how legislation is adopted, how a sovereign should relate to its subjects, and rules of private and state property. Yet it also addressed transborder issues of the kind arising among sovereignties—that is, issues within the realm of international law. One usually can tell from the context whether the author was discussing an issue of municipal or international law.
Thus, in Book I Vattel classified a rule among some European states denying citizenship to foreigners as part of the local “law of nations, established there by custom.” V
Book II was entitled “Of a Nation Considered in its Relation to Others,” and was, in fact, devoted wholly to the law of nations. (The third and fourth books were about war and peace, respectively.) Book II leaves no doubt that immigration was a “law of nations” issue. Here is part of Book II's treatment of immigration:
The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual.
V
Vattel added that “the least encroachment on the territory of another is an act of injustice . . .”
As every thing included in the country belongs to the nation,—and as none but the nation, or the person on whom she has devolved her right, is authorised to dispose of those things . . . ,— if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her: she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property.
The categorical right to exclude also implied the right to admit under conditions:
Since the lord of the territory may, whenever he thinks proper, forbid its being entered . . . , he has no doubt a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain.
The law of nations also encompassed an individual duty to obey: “We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign;”
Apparently, in Vattel's view, a sovereign that does not restrain its inhabitants from breaching another country's immigration laws also violates the law of nations: “If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation, than if he injured it himself.”
Like other international law writers familiar to the Founders, Vattel believed a sovereign had some obligation to consider admitting exiles and fugitives. However, those making the decision had to weigh the consequences, and could either deny refuge altogether or place conditions on it.
Georg Friedrich von Martens was forthright on the power of a sovereign to exclude foreigners:
From the moment a nation have taken possession of a territory in right of first occupier, and with the design to establish themselves there for the future, they become the absolute and sole proprietors of it, and all that it contains; and have a right to exclude all other nations from it, to use it, and dispose of it as they think proper . . . .
M
Martens deduced several conclusions from this general proposition. One was that because foreigners could be excluded entirely, they also could be admitted on condition. Speaking of taxation, Martens wrote, “A foreigner enjoying the protection of the state, cannot, while he remains in it, expect to be entirely exempted from imposts. Besides, it may be made a condition of his admission . . . .”
From the right of excluding all foreigners from the territory is derived another right, the
The fact that Martens included this material in a book on the “law of nations” precisely when the Constitution was being composed and debated strengthens the inference that the contemporaneous meaning of the “law of nations” included power to control, or even prohibit, immigration.
William Blackstone's work dealt principally with the common law of England, but he also outlined some general rules from the law of nations. One was that, with minor qualifications, a state had the right to exclude foreigners:
Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. And therefore Puffendorf very justly resolves, that it is left in the power of all states, to take such measures about the admissions of strangers, as they think convenient; those being ever excepted who are driven on the coasts by necessity, or by any cause that deserves pity or compassion.
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Clearly, Blackstone believed that the sovereign's prerogative to exclude was very extensive.
In my popular writing, I have identified a process, occurring primarily during the nineteenth century, in which constitutional writers lost the original meaning of certain constitutional provisions and phrases.
Robert G. Natelson, 3 Caines 175 (Sup. Ct. N.Y. 1805).
The majority opinion, written by Daniel D. Tompkins (later Vice President of the United States) held that a person generally acquired a sufficient property right in a wild animal to maintain such a lawsuit only if he had reduced the animal to possession. Tompkins relied for this conclusion on works by, among others, Grotius, Pufendorf, and Barbeyrac.
The dissent, penned by Brockholst Livingston (later associate justice of the U.S. Supreme Court), deprecated Justice Tompkins’ appeal to traditional authority: “This is a knotty point,” he wrote, “and should have been submitted to the arbitration of sportsmen, without poring over Justinian, Fleta, Bracton, Puffendorf, Locke, Barbeyrac, or Blackstone, all of whom have been cited.”
It happens that many Americans, eager to leave the Old World behind and advance into the New, agreed with Livingston. I suspect most modern casebook writers and law professors would agree as well.
The late Alan Watson, the celebrated Scottish comparative law scholar, thought they were being unduly hasty. He sharply criticized a leading twentieth-century property law casebook that was as dismissive of historical authorities as Justice Livingston had been, Watson wrote:
A second part of the answer is the great importance attributed to these works. Justinian's restatement of Roman law was—still is—regarded as the foundation stone of subsequent Western law. Puffendorf, who was much admired in the U.S. at the time, was attempting to set up on rational principles rules that ought to be valid everywhere in the civilized world, hence including New York. Naturally, in the circumstances of the time, these principles very much derived from the Roman law of Justinian. Fleta and Bracton give the English connection. Dukeminier and Krier [the casebook authors] do the student no service when they say the opinions “are peppered with references to a number of obscure legal works and legal scholars.”
Alan Watson,
I agree with Professor Watson. One can understand the desire to get on with things, but doing so heedlessly has cost us an understanding of parts of our own Constitution—the Define and Punish Clause representing one example. A similar lack of understanding plagues other sections of the document, particularly sections that populate the majority of the text disregarded in constitutional law courses.
Several years ago, when choosing a constitutional law case book for my own students, I surveyed all such books on the market. Most of the Constitution received either summary coverage from them or none at all. On average, these case books devoted two-thirds of their coverage to two percent of the Constitution—the two percent being the First Amendment and Sections 1 and 5 of the Fourteenth Amendment. I do not think it is coincidental that those are the parts of the document most often at issue when a case involves pornography, sex, or race.
Fortunately, I have found that one often can resolve the uncertainty by a few hours’ immersion in the legal and literary canon of the Founding era.
Many of my publications report the results of this immersion.