bill authorizing the President of the United States to
appoint an agent to purchase of the Indians that tract of
land on the south side of Lake Superior, which shall
include the great copper bed.
Mr. C. said, as this invaluable copper mine was well known by
individuals, it no doubt would soon become an object of speculation, but
wishing to make it of public utility, as it must become if purchased, he
hoped the proposition would be adopted.
_Jonathan Robbins._
The House then resolved itself into a Committee of the Whole on the
Message of the President respecting Jonathan Robbins, when Mr.
LIVINGSTON spoke about three hours in support of the resolutions he some
time since submitted to the House on that subject.
Mr. BAYARD was proceeding to follow Mr. L. when a member moved the
committee to rise and ask leave to sit again. Mr. B. objected: he said
he was prepared to proceed if the House would have patience at that late
hour to hear him. Several members expressed a desire that he might
proceed, which he was doing, when the SPEAKER hoped the gentleman would
give way to a motion for the committee to rise; he had no doubt of his
friend being prepared for the discussion, but from the length the answer
must necessarily take, the House certainly would be fatigued much before
he would conclude. The motion was made and carried.
During Mr. LIVINGSTON'S observations he introduced a copy of the record
of the Circuit Court in New Jersey, where three men were tried and
acquitted on the charge of piracy, and one of them for murder, on board
of the same frigate and at the same time. This record, on motion of Mr.
RUTLEDGE, was ordered to be printed.
Mr. NICHOLAS, not being able to account to his satisfaction for the
obvious change of conduct in our Executive in this recited instance and
the one now under the consideration of the House (though precisely the
same in facts) any other way than by supposing that a correspondence on
the subject had occurred between the Executive of the United States and
the British Government; though he expressed himself to be extremely
unwilling, yet he thought it his duty to move that the President be
requested to furnish it to the House.
An adjournment was immediately called and carried.
WEDNESDAY, March 5.
The House then resolved itself into a committee on the Message, when Mr.
BAYARD proceeded, in answer to Mr. LIVINGSTON, in which he spoke about
three hours.[50] The committee then rose, and obtained leave to sit
again.
THURSDAY, March 6.
A message from the Senate informed the House that the Senate had passed
the bill, entitled "An act declaring the assent of Congress to certain
acts of the States of Maryland and Georgia," with an amendment; to which
they desire the concurrence of this House.
_Jonathan Robbins._
The House went into Committee of the Whole on the Message of the
PRESIDENT, in the case of Jonathan Robbins, when Mr. NICHOLAS spoke
about three hours[51] in favor of the resolutions introduced by Mr.
LIVINGSTON, which were negatived--yeas 34, nays 58.
Some discussion then took place on taking up the resolution presented by
Mr. BAYARD, which was also with the Committee of the whole House. The
committee at length rose without entering upon it, and reported their
disagreement to the resolutions proposed by Mr. LIVINGSTON; and the
question whether the committee should have leave to sit again was taken
by yeas and nays, and carried--yeas 59, nays 38.
The question was then before the House to agree to the report of the
committee in their disagreement with the resolutions.
Mr. GALLATIN rose, and entered generally into the argument, in a speech
of about two hours, after which the House adjourned.[52]
FRIDAY, March 7.
_Jonathan Robbins._
The House took up the unfinished business of yesterday, and the
question, Will the House agree with the Committee of the Whole in their
disagreement to Mr. LIVINGSTON'S resolutions? being under consideration,
Mr. MARSHALL said, that believing, as he did most seriously, that in a
Government constituted like that of the United States, much of the
public happiness depended, not only on its being rightly administered,
but on the measures of Administration being rightly understood--on
rescuing public opinion from those numerous prejudices with which so
many causes might combine to surround it, he could not but have been
highly gratified with the very eloquent, and what was still more
valuable, the very able and very correct argument which had been
delivered by the gentleman from Delaware (Mr. BAYARD) against the
resolutions now under consideration. He had not expected that the effect
of this argument would be universal; but he had cherished the hope, and
in this he had not been disappointed, that it would be very extensive.
He did not flatter himself with being able to shed much new light on the
subject; but, as the argument in opposition to the resolutions had been
assailed with considerable ability by gentlemen of great talents, he
trusted the House would not think the time misapplied which would be
devoted to the re-establishment of the principles contained in that
argument, and to the refutation of those advanced in opposition to it.
In endeavoring to do this, he should notice the observations in support
of the resolutions, not in the precise order in which they were made;
but as they applied to the different points he deemed it necessary to
maintain, in order to demonstrate, that the conduct of the Executive of
the United States could not justly be charged with the errors imputed to
it by the resolutions.
His first proposition, he said, was that the case of Thomas Nash, as
stated to the President, was completely within the 27th article of the
Treaty of Amity, Commerce, and Navigation, entered into between the
United States of America and Great Britain.
He read the article, and then observed: The _casus foederis_ of this
article occurs, when a person, having committed murder or forgery within
the jurisdiction of one of the contracting parties, and having sought an
asylum in the country of the other, is charged with the crime, and his
delivery demanded, on such proof of his guilt as, according to the laws
of the place where he shall be found, would justify his apprehension and
commitment for trial, if the offence had there been committed.
The case stated is, that Thomas Nash, having committed murder on board
of a British frigate, navigating the high seas under a commission from
His Britannic Majesty, had sought an asylum within the United States; on
this case his delivery was demanded by the Minister of the King of Great
Britain.
It is manifest that the case stated, if supported by proof, is within
the letter of the article, provided a murder committed in a British
frigate, on the high seas, be committed within the jurisdiction of that
nation. That such a murder is within their jurisdiction, has been fully
shown by the gentleman from Delaware. The principle is, that the
jurisdiction of a nation extends to the whole of its territory, and to
its own citizens in every part of the world. The laws of a nation are
rightfully obligatory on its own citizens in every situation where those
laws are really extended to them. This principle is founded on the
nature of civil union. It is supported every where by public opinion,
and is recognized by writers on the laws of nations. _Rutherforth_, in
his second volume, page 180, says: "The jurisdiction which a civil
society has over the persons of its members, affects them immediately,
whether they are within its territories or not."
This general principle is especially true, and is particularly
recognized, with respect to the fleets of a nation on the high seas. To
punish offences committed in its fleets, is the practice of every nation
in the universe; and consequently the opinion of the world is, that a
fleet at sea is within the jurisdiction of the nation to which it
belongs. _Rutherforth_, vol. ii. p. 491, says: "there can be no doubt
about the jurisdiction of a nation over the persons which compose its
fleets, when they are out at sea, whether they are sailing upon it or
are stationed in any particular part of it."
The gentleman from Pennsylvania, (Mr. GALLATIN,) though he has not
directly controverted this doctrine, has sought to weaken it by
observing that the jurisdiction of a nation at sea could not be complete
even in its own vessels; and in support of this position he urged the
admitted practice of submitting to search for contraband--a practice not
tolerated on land, within the territory of a neutral power. The rule is
as stated; but is founded on a principle which does not affect the
jurisdiction of a nation over its citizens or subjects in its ships. The
principle is, that in the sea itself no nation has any jurisdiction. All
may equally exercise their rights, and consequently the right of a
belligerent power to prevent aid being given to his enemy, is not
restrained by any superior right of a neutral in the place. But, if this
argument possessed any force, it would not apply to national
ships-of-war, since the usage of nations does not permit them to be
searched.
According to the practice of the world, then, and the opinions of
writers on the law of nations, the murder committed on board the British
frigate navigating the high seas, was a murder committed within the
jurisdiction of the British nation.
Although such a murder is plainly within the letter of the article, it
has been contended not to be within its just construction; because at
sea all nations have a common jurisdiction, and the article correctly
construed, will not embrace a case of concurrent jurisdiction.
It is deemed unnecessary to controvert this construction, because the
proposition, that the United States had no jurisdiction over the murder
committed by Thomas Nash, is believed to be completely demonstrable.
It is not true that all nations have jurisdiction over all offences
committed at sea. On the contrary, no nation has any jurisdiction at
sea, but over its own citizens or vessels, or offences against itself.
This principle is laid down in 2 _Ruth._ 488, 491.
The American Government has, on a very solemn occasion, avowed the same
principle. The first Minister of the French Republic asserted and
exercised powers of so extraordinary a nature, as unavoidably to produce
a controversy with the United States. The situation in which the
Government then found itself was such as necessarily to occasion a very
serious and mature consideration of the opinions it should adopt. Of
consequence, the opinions then declared deserve great respect. In the
case alluded to, Mr. Genet had asserted the right of fitting out
privateers in the American ports, and of manning them with American
citizens, in order to cruise against nations with whom America was at
peace. In reasoning against this extravagant claim, the then Secretary
of State, in his letter of the 17th of June, 1793, says:
"For our citizens then to commit murders and depredations
on the members of nations at peace with us, or to combine
to do it, appeared to the Executive, and to those whom they
consulted, as much against the laws of the land as to
murder or rob, or combine to murder or rob its own
citizens; and as much to require punishment, if done within
their limits, where they have a territorial jurisdiction,
or on the high seas, where they have a personal
jurisdiction, that is to say, one which reaches their own
citizens only; this being an appropriate part of each
nation, on an element where all have a common
jurisdiction."
The well considered opinion, then, of the American Government on this
subject is, that the jurisdiction of a nation at sea is "personal,"
reaching its "own citizens only;" and that this is the "appropriate part
of each nation" on that element.
This is precisely the opinion maintained by the opposers of the
resolutions. If the jurisdiction of America at sea be personal, reaching
its own citizens only; if this be its appropriate part, then the
jurisdiction of the nation cannot extend to a murder committed by a
British sailor, on board a British frigate navigating the high seas
under a commission from His Britannic Majesty.
As a further illustration of the principle contended for, suppose a
contract made at sea, and a suit instituted for the recovery of money
which might be due thereon. By the laws of what nation would the
contract be governed? The principle is general that a personal contract
follows the person, but is governed by the law of the place where it is
formed. By what law then would such a contract be governed? If all
nations had jurisdiction over the place, then the laws of all nations
would equally influence the contract; but certainly no man will hesitate
to admit that such a contract ought to be decided according to the laws
of that nation to which the vessel or contracting parties might belong.
Suppose a duel, attended with death, in the fleet of a foreign nation,
or in any vessel which returned safe to port, could it be pretended that
any government on earth, other than that to which the fleet or vessel
belonged, had jurisdiction in the case; or that the offender could be
tried by the laws or tribunals of any other nation whatever?
Suppose a private theft by one mariner, from another, and the vessel to
perform its voyage and return in safety, would it be contended that all
nations have equal cognizance of the crime, and are equally authorized
to punish it?
If there be this common jurisdiction at sea, why not punish desertion
from one belligerent power to another, or correspondence with the enemy,
or any other crime which may be perpetrated? A common jurisdiction over
all offences at sea, in whatever vessel committed, would involve the
power of punishing the offences which have been stated. Yet all
gentlemen will disclaim this power. It follows, then, that no such
common jurisdiction exists.
In truth the right of every nation to punish is limited, in its nature,
to offences against the nation inflicting the punishment. This principle
is believed to be universally true. It comprehends every possible
violation of its laws on its own territory, and it extends to violations
committed elsewhere by persons it has a right to bind. It extends also
to general piracy.
A pirate, under the law of nations, is an enemy of the human race. Being
the enemy of all, he is liable to be punished by all. Any act which
denotes this universal hostility, is an act of piracy.
Not only an actual robbery, therefore, but cruising on the high seas
without commission, and with intent to rob, is piracy. This is an
offence against all and every nation, and is therefore alike punishable
by all. But an offence which in its nature affects only a particular
nation, is only punishable by that nation.
It is by confounding general piracy with piracy by statute, that
indistinct ideas have been produced, respecting the power to punish
offences committed on the high seas.
A statute may make any offence piracy, committed within the jurisdiction
of the nation passing the statute, and such offence will be punishable
by that nation. But piracy under the law of nations, which alone is
punishable by all nations, can only consist in an act which is an
offence against all. No particular nation can increase or diminish the
list of offences thus punishable.
It has been observed by his colleague, (Mr. NICHOLAS,) for the purpose
of showing that the distinction taken on this subject by the gentleman
from Delaware (Mr. BAYARD) was inaccurate, that any vessel robbed on the
high seas could be the property only of a single nation, and being only
an offence against that nation, could be, on the principle taken by the
opposers of the resolutions, no offence against the law of nations; but
in this his colleague had not accurately considered the principle. As a
man who turns out to rob on the highway, and forces from a stranger his
purse with a pistol at his bosom, is not the particular enemy of that
stranger, but alike the enemy of every man who carries a purse, so those
who without a commission rob on the high seas, manifest a temper hostile
to all nations, and therefore become the enemies of all. The same
inducements which occasion the robbery of one vessel, exist to occasion
the robbery of others, and therefore the single offence is an offence
against the whole community of nations, manifests a temper hostile to
all, is the commencement of an attack on all, and is consequently, of
right, punishable by all.
His colleague had also contended that all the offences at sea,
punishable by the British statutes from which the act of Congress was in
a great degree copied, were piracies at common law, or by the law of
nations, and as murder is among these, consequently murder was an act
of piracy by the law of nations, and therefore punishable by every
nation. In support of this position he had cited 1 _Hawk. P. C._ 267.
271-3, _Inst._ 112, and 1 _Woodeson_, 140.
The amount of these cases is, that no new offence is made piracy by the
statutes; but that a different tribunal is created for their trial,
which is guided by a different rule from that which governed previous to
those statutes. Therefore, on an indictment for piracy, it is still
necessary to prove an offence which was piracy before the statutes. He
drew from these authorities a very different conclusion from that which
had been drawn by his colleague. To show the correctness of his
conclusion, it was necessary to observe, that the statute did not indeed
change the nature of piracy, since it only transferred the trial of the
crime to a different tribunal, where different rules of decision
prevailed; but having done this, other crimes committed on the high
seas, which were not piracy, were made punishable by the same tribunal;
but certainly this municipal regulation could not be considered as
proving that those offences were, before, piracy by the law of nations.
[Mr. NICHOLAS insisted that the law was not correctly stated, whereupon
Mr. MARSHALL called for 3 _Inst._ and read the statute:]
"All treasons, felonies, robberies, murders, and
confederacies, committed in or upon the seas, &c., shall be
inquired, tried, heard, determined and judged in such
shires, &c., in like form and condition as if any such
offence had been committed on the land," &c. "And such as
shall be convicted, &c., shall have and suffer such pains
of death, &c., as if they had been attainted of any
treason, felony, robbery, or other the said offences done
upon the land."
This statute, it is certain, does not change the nature of piracy; but
all treasons, felonies, robberies, murders, and confederacies, committed
in or upon the sea, are not declared to have been, nor are they
piracies. If a man be indicted as a pirate, the offence must be shown to
have been piracy before the statute; but if he be indicted for treason,
felony, robbery, murder, or confederacy, committed at sea, whether such
offence was or was not a piracy, he shall be punished in like manner as
if he had committed the same offence on land. The passage cited from 1
_Woodeson_, 140, is a full authority to this point. Having stated that
offences committed at sea were formerly triable before the Lord High
Admiral, according to the course of the Roman civil law, _Woodeson_
says:
"But, by the statutes 27 H. 8. c. 4, and 28 H. 8. c. 15,
all treasons, felonies, piracies, and other crimes
committed on the sea, or where the admiral has
jurisdiction, shall be tried in the realm as if done on
land. But the statutes referred to affect only the manner
of the trial as far as respects piracy. The nature of the
offence is not changed. Whether a charge amount to piracy
or not, must still depend on the law of nations, except
where, in the case of British subjects, express acts of
Parliament have declared that the crimes therein specified
shall be adjudged piracy, or shall be liable to the same
mode of trial and degree of punishment."
This passage proves not only that all offences at sea are not piracies
by the law of nations, but also that all indictments for piracy must
depend on the law of nations, "except where, in the case of British
subjects, express acts of Parliament" have changed the law. Why do not
these "express acts of Parliament" change the law as to others than
"British subjects?" The words are general, "all treasons, felonies, &c."
Why are they confined in construction to British subjects? The answer is
a plain one: The jurisdiction of the nation is confined to its territory
and to its own subjects.
The gentleman from Pennsylvania (Mr. GALLATIN) abandons, and very
properly abandons, this untenable ground. He admits that no nation has a
right to punish offences against another nation, and that the United
States can only punish offences against their own laws and the law of
nations. He admits, too, that if there had only been a mutiny (and
consequently if there had only been a murder) on board the Hermione,
that the American courts could have taken no cognizance of the crime.
Yet mutiny is punishable as piracy by the law of both nations. That
gentleman contends that the act committed by Nash was piracy, according
to the law of nations. He supports his position by insisting that the
offence may be constituted by the commission of a single act: that
unauthorized robbery on the high seas is this act, and that the crew
having seized the vessel, and being out of the protection of any nation,
were pirates.
It is true that the offence may be completed by a single act; but it
depends on the nature of that act. If it be such as manifests generally
hostility against the world--an intention to rob generally, then it is
piracy; but if it be merely a mutiny and murder in a vessel, for the
purpose of delivering it up to the enemy, it seems to be an offence
against a single nation and not to be piracy. The sole object of the
crew might be to go over to the enemy, or to free themselves from the
tyranny experienced on board a ship-of-war, and not to rob generally.
But, should it even be true that running away with a vessel to deliver
her up to an enemy was an act of general piracy, punishable by all
nations, yet the mutiny and murder was a distinct offence. Had the
attempt to seize the vessel failed, after the commission of the murder,
then, according to the argument of the gentleman from Pennsylvania, the
American courts could have taken no cognizance of the crime. Whatever
then might have been the law respecting the piracy, of the murder there
was no jurisdiction. For the murder, not the piracy, Nash was delivered
up. Murder, and not piracy, is comprehended in the 27th article of the
treaty between the two nations. Had he been tried then and acquitted on
an indictment for the piracy, he must still have been delivered up for
the murder, of which the court could have no jurisdiction. It is certain
that an acquittal of the piracy would not have discharged the murder;
and, therefore, in the so much relied on trials at Trenton, a separate
indictment for murder was filed after an indictment for piracy. Since,
then, if acquitted for piracy, he must have been delivered to the
British Government on the charge of murder, the President of the United
States might, very properly, without prosecuting for the piracy, direct
him to be delivered up on the murder.
All the gentlemen who have spoken in support of the resolutions, have
contended that the case of Thomas Nash is within the purview of the act
of Congress, which relates to this subject, and is by that act made
punishable in the American courts. That is, that the act of Congress
designed to punish crimes committed on board a British frigate. Nothing
can be more completely demonstrable than the untruth of this
proposition.
It has already been shown that the legislative jurisdiction of a nation
extends only to its own territory, and to its own citizens, wherever
they may be. Any general expression in a legislative act must,
necessarily, be restrained to objects within the jurisdiction of the
Legislature passing the act. Of consequence an act of Congress can only
be construed to apply to the territory of the United States,
comprehending every person within it, and to the citizens of the United
States.
But, independent of this undeniable truth, the act itself affords
complete testimony of its intention and extent. (_See Laws of the United
States_, vol. i. p. 10.) The title is: "An act for the punishment of
certain crimes against the United States." Not against Britain, France,
or the world, but singly "against the United States."
The first section relates to treason, and its objects are, "any person
or persons owing allegiance to the United States." This description
comprehends only the citizens of the United States, and such others as
may be on its territory or in its service.
The second section relates to misprision of treason; and declares,
without limitation, that any person or persons, having knowledge of any
treason, and not communicating the same, shall be guilty of that crime.
Here then is an instance of that limited description of persons in one
section, and of that general description in another, which has been
relied on to support the construction contended for by the friends of
the resolutions. But will it be pretended that a person can commit
misprision of treason who cannot commit treason itself? That he would be
punishable for concealing a treason who could not be punished for
plotting it? Or, can it be supposed that the act designed to punish an
Englishman or a Frenchman, who, residing in his own country, should have
knowledge of treasons against the United States, and should not cross
the Atlantic to reveal them?
The same observations apply to the sixth section, which makes any
"person or persons" guilty of misprision of felony, who, having
knowledge of murder or other offences enumerated in that section, should
conceal them. It is impossible to apply this to a foreigner, in a
foreign land, or to any person not owing allegiance to the United
States.
The eighth section, which is supposed to comprehend the case, after
declaring that if any "person or persons" shall commit murder on the
high seas, he shall be punishable with death, proceeds to say, that if
any captain or mariner shall piratically run away with a ship or vessel,
or yield her up voluntarily to a pirate, or if any seaman shall lay
violent hands on his commander, to prevent his fighting, or shall make a
revolt in the ship, every such offender shall be adjudged a pirate and a
felon.
The persons who are the objects of this section of the act are all
described in general terms, which might embrace the subjects of all
nations. But is it to be supposed that, if in an engagement between an
English and a French ship-of-war, the crew of the one or the other
should lay violent hands on the captain and force him to strike, that
this would be an offence against the act of Congress, punishable in the
courts of the United States? On this extended construction of the
general terms of the section, not only the crew of one of the foreign
vessels forcing their captain to surrender to another, would incur the
penalties of the act, but, if in the late action between the gallant
Truxton and the French frigate, the crew of that frigate had compelled
the captain to surrender, while he was unwilling to do so, they would
have been indictable as felons in the courts of the United States. But
surely the act of Congress admits of no such extravagant construction.
His colleague, Mr. M. said, had cited and particularly relied on the
ninth section of the act; that section declares, that if a citizen shall
commit any of the enumerated piracies, or any acts of hostility, on the
high seas, against the United States, under color of a commission from
any foreign Prince or State, he shall be adjudged a pirate, felon, and
robber, and shall suffer death.
This section is only a positive extension of the act to a case which
might otherwise have escaped punishment. It takes away the protection of
a foreign commission from an American citizen, who, on the high seas,
robs his countrymen. This is no exception from any preceding part of the
law, because there is no part which relates to the conduct of vessels
commissioned by a foreign power; it only proves that, in the opinion of
the Legislature, the penalties of the act could not, without this
express provision, have been incurred by a citizen holding a foreign
commission.
It is most certain, then, that the act of Congress does not comprehend
the case of a murder committed on board a foreign ship-of-war.
The gentleman from New York has cited 2 _Woodeson_, 428, to show that
the courts of England extend their jurisdiction to piracies committed by
the subjects of foreign nations.
This has not been doubted. The case from Woodeson is a case of robberies
committed on the high seas by a vessel without authority. There are
ordinary acts of piracy which, as has been already stated, being
offences against all nations, are punishable by all. The case from 2
_Woodeson_, and the note cited from the same book by the gentleman from
Delaware, are strong authorities against the doctrines contended for by
the friends of the resolutions.
It has also been contended that the question of jurisdiction was decided
at Trenton, by receiving indictments against persons there arraigned for
the same offence, and by retaining them for trial after the return of
the habeas corpus.
Every person in the slightest degree acquainted with judicial
proceedings, knows that an indictment is no evidence of jurisdiction;
and that, in criminal cases, the question of jurisdiction will seldom be
made but by arrest of judgment after conviction.
The proceedings, after the return of the habeas corpus, only prove that
the case was not such a case as to induce the Judge immediately to
decide against his jurisdiction. The question was not free from doubt,
and, therefore, might very properly be postponed until its decision
should become necessary.
It has been argued by the gentleman from New York, that the form of the
indictment is, itself, evidence of a power in the court to try the case.
Every word of that indictment, said the gentleman, gives the lie to a
denial of the jurisdiction of the court.
It would be assuming a very extraordinary principle, indeed, to say that
words inserted in an indictment for the express purpose of assuming the
jurisdiction of a court, should be admitted to prove that jurisdiction.
The question certainly depended on the nature of the fact, and not on
the description of the fact. But as an indictment must necessarily
contain formal words in order to be supported, and as forms often denote
what a case must substantially be to authorize a court to take
cognizance of it, some words in the indictments at Trenton ought to be
noticed. The indictments charge the persons to have been within the
peace, and murder to have been committed against the peace, of the
United States. These are necessary averments, and, to give the court
jurisdiction, the fact ought to have accorded with them. But who will
say that the crew of a British frigate on the high seas, are within the
peace of the United States? or a murder committed on board such a
frigate, against the peace of any other than the British Government?
It is, then, demonstrated that the murder with which Thomas Nash was
charged, was not committed within the jurisdiction of the United States,
and, consequently, that the case stated was completely within the letter
and the spirit of the twenty-seventh article of the treaty between the
two nations. If the necessary evidence was produced, he ought to have
been delivered up to justice. It was an act to which the American nation
was bound by a most solemn compact. To have tried him for the murder
would have been mere mockery. To have condemned and executed him, the
court having no jurisdiction, would have been murder. To have acquitted
and discharged him would have been a breach of faith, and a violation of
national duty.
But it has been contended that, although Thomas Nash ought to have been
delivered up to the British Minister, on the requisition made by him in
the name of his Government, yet, the interference of the President was
improper.
This, Mr. M. said, led to his second proposition, which was:
That the case was a case for Executive and not Judicial decision. He
admitted implicitly the division of powers, stated by the gentleman from
New York, and that it was the duty of each department to resist the
encroachments of the others.
This being established, the inquiry was, to what department was the
power in question allotted?
The gentleman from New York had relied on the second section of the
third article of the constitution, which enumerates the cases to which
the Judicial power of the United States extends, as expressly including
that now under consideration. Before he examined that section, it would
not be improper to notice a very material misstatement of it made in the
resolutions, offered by the gentleman from New York. By the
constitution, the Judicial power of the United States is extended to all
cases in law and equity, arising under the constitution, laws, and
treaties of the United States; but the resolutions declare that Judicial
power to extend to all questions arising under the constitution,
treaties, and laws of the United States. The difference between the
constitution and resolutions was material and apparent. A case in law or
equity was a term well understood, and of limited signification. It was
a controversy between parties which had taken a shape for judicial
decision. If the Judicial power extended to every question under the
constitution, it would involve almost every subject proper for
Legislative discussion and decision; if, to every question under the
laws and treaties of the United States, it would involve almost every
subject on which the Executive could act. The division of power which
the gentleman had stated, could exist no longer, and the other
departments would be swallowed up by the Judiciary. But it was apparent
that the resolutions had essentially misrepresented the constitution. He
did not charge the gentleman from New York with intentional
misrepresentation; he would not attribute to him such an artifice in any
case, much less in a case where detection was so easy and so certain.
Yet this substantial departure from the constitution, in resolutions
affecting substantially to unite it, was not less worthy of remark for
being unintentional. It manifested the course of reasoning by which the
gentleman had himself been misled, and his judgment betrayed into the
opinions those resolutions expressed. By extending the Judicial power to
all cases in law and equity, the constitution had never been understood
to confer on that department any political power whatever. To come
within this description, a question must assume a legal form for
forensic litigation and judicial decision. There must be parties to come
into court, who can be reached by its process, and bound by its power;
whose rights admit of ultimate decision by a tribunal to which they are
bound to submit.
A case in law or equity proper for judicial decision may arise under a
treaty, where the rights of individuals acquired or secured by a treaty
are to be asserted or defended in court. As under the fourth or sixth
article of the treaty of peace with Great Britain, or under those
articles of our late treaties with France, Prussia, and other nations,
which secure to the subjects of those nations their property within the
United States; or, as would be an article, which, instead of stipulating
to deliver up an offender, should stipulate his punishment, provided the
case was punishable by the laws and in the courts of the United States.
But the Judicial power cannot extend to political compacts; as the
establishment of the boundary line between the American and British
dominions; the case of the late guarantee in our treaty with France, or
the case of the delivery of a murderer under the twenty-seventh article
of our present treaty with Britain.
The gentleman from New York has asked, triumphantly asked, what power
exists in our courts to deliver up an individual to a foreign
Government? Permit me, said Mr. M., but not triumphantly, to retort the
question. By what authority can any court render such a judgment? What
power does a court possess to seize any individual and determine that he
shall be adjudged by a foreign tribunal? Surely our courts possess no
such power, yet they must possess it, if this article of the treaty is
to be executed by the courts.
Gentlemen have cited and relied on that clause in the constitution,
which enables Congress to define and punish piracies and felonies
committed on the high seas, and offences against the law of nations;
together with an act of Congress declaring the punishment of those
offences; as transferring the whole subject to the courts. But that
clause can never be construed to make to the Government a grant of
power, which the people making it do not themselves possess. It has
already been shown that the people of the United States have no
jurisdiction over offences committed on board a foreign ship against a
foreign nation. Of consequence, in framing a Government for themselves,
they cannot have passed this jurisdiction to that Government. The law,
therefore, cannot act upon the case. But this clause of the
constitution cannot be considered, and need not be considered, as
affecting acts which are piracy under the law of nations. As the
judicial power of the United States extends to all cases of admiralty
and maritime jurisdiction, and piracy under the law of nations is of
admiralty and maritime jurisdiction, punishable by every nation, the
judicial power of the United States of course extends to it. On this
principle the Courts of Admiralty under the Confederation took
cognizance of piracy, although there was no express power in Congress to
define and punish the offence.
But the extension of the judicial power of the United States to all
cases of admiralty and maritime jurisdiction must necessarily be
understood with some limitation. All cases of admiralty and maritime
jurisdiction which, from their nature, are triable in the United States,
are submitted to the jurisdiction of the courts of the United States.
There are cases of piracy by the law of nations, and cases within the
legislative jurisdiction of the nation; the people of America possessed
no other power over the subject, and could consequently transfer no
other to their courts; and it has already been proved that a murder
committed on board a foreign ship-of-war is not comprehended within this
description.
The Consular Convention with France, has also been relied on, as proving
the act of delivering up an individual to a foreign power to be in its
nature Judicial and not Executive.
The ninth article of that Convention authorizes the Consuls and Vice
Consuls of either nation to cause to be arrested all deserters from
their vessel, "for which purpose the said Consuls and Vice Consuls shall
address themselves to the courts, judges, and officers competent."
This article of the Convention does not, like the 27th article of the
treaty with Britain, stipulate a national act, to be performed on the
demand of a nation; it only authorizes a foreign Minister to cause an
act to be done, and prescribes the course he is to pursue. The contract
itself is, that the act shall be performed by the agency of the foreign
Consul, through the medium of the courts; but this affords no evidence
that a contract of a very different nature is to be performed in the
same manner.
It is said that the then President of the United States declared the
incompetency of the courts, judges, and officers, to execute this
contract without an act of the Legislature. But the then President made
no such declaration.
He has said that some legislative provision is requisite to carry the
stipulations of the Convention into full effect. This, however, is by no
means declaring the incompetency of a department to perform an act
stipulated by treaty, until the legislative authority shall direct its
performance.
It has been contended that the conduct of the Executive on former
occasions, similar to this in principle, has been such as to evince an
opinion, even in that department, that the case in question is proper
for the decision of the courts.
The fact adduced to support this argument is the determination of the
late President on the case of prizes made within the jurisdiction of the
United States, or by privateers fitted out in their ports.
The nation was bound to deliver up those prizes in like manner as the
nation is now bound to deliver up an individual demanded under the 27th
article of the treaty with Britain. The duty was the same, and devolved
on the same department.
In quoting the decision of the Executive on that case, the gentleman
from New York has taken occasion to bestow a high encomium on the late
President; and to consider his conduct as furnishing an example worthy
the imitation of his successor. It must be the cause of much delight to
the real friends of that great man; to those who supported his
Administration while in office from a conviction of its wisdom and its
virtue, to hear the unqualified praise which is now bestowed on it by
those who had been supposed to possess different opinions. If the
measure now under consideration shall be found, on examination, to be
the same in principle with that which has been cited, by its opponents,
as a fit precedent for it, then may the friends of the gentleman now in
office indulge the hope, that when he, like his predecessor, shall be no
more, his conduct too may be quoted as an example for the government of
his successors.
The evidence relied on to prove the opinion of the then Executive on the
case, consists of two letters from the Secretary of State, the one of
the 29th of June, 1793, to Mr. Genet, and the other of the 16th of
August, 1793, to Mr. Morris.
In the letter to Mr. Genet, the Secretary says, that the claimant having
filed his libel against the ship William, in the Court of Admiralty,
there was no power which could take the vessel out of court until it had
decided against its own jurisdiction; that having so decided, the
complaint is lodged with the Executive, and he asks for evidence, to
enable that department to consider and decide finally on the subject.
It will be difficult to find in this letter an Executive opinion, that
the case was not a case for Executive decision. The contrary is clearly
avowed. It is true, that when an individual, claiming the property as
his, had asserted that claim in court, the Executive acknowledges in
itself a want of power to dismiss or decide upon the claim thus pending
in court. But this argues no opinion of a want of power in itself to
decide upon the case, if, instead of being carried before a court as an
individual claim, it is brought before the Executive as a national
demand. A private suit instituted by an individual, asserting his claim
to property, can only be controlled by that individual. The Executive
can give no direction concerning it. But a public prosecution carried on
in the name of the United States can, without impropriety, be dismissed
at the will of the Government. The opinion, therefore, given in this
letter, is unquestionably correct; but it is certainly misunderstood,
when it is considered as being an opinion that the question was not in
its nature a question for Executive decision.
In the letter to Mr. Morris, the Secretary asserts the principle, that
vessels taken within our jurisdiction ought to be restored, but says, it
is yet unsettled whether the act of restoration is to be performed by
the Executive or Judicial Department. The principle, then, according to
this letter, is not submitted to the court--whether a vessel captured
within a given distance of the American coast, was or was not captured
within the jurisdiction of the United States, was a question not to be
determined by the courts, but by the Executive. The doubt expressed is
not what tribunal shall settle the principle, but what tribunal shall
settle the fact. In this respect, a doubt might exist in the case of
prizes, which could not exist in the case of a man. Individuals on each
side claimed the property, and therefore their rights could be brought
into court, and there contested as a case in law or equity. The demand
of a man made by a nation stands on different principles.
Having noticed the particular letters cited by the gentleman from New
York, permit me now, said Mr. M., to ask the attention of the House to
the whole course of Executive conduct on this interesting subject.
It is first mentioned in a letter from the Secretary of State to Mr.
Genet, of the 25th of June, 1793. In that letter, the Secretary states a
consultation between himself and the Secretaries of the Treasury and
War, (the President being absent,) in which (so well were they assured
of the President's way of thinking in those cases) it was determined
that the vessels should be detained in the custody of the Consuls, in
the ports, until the Government of the United States shall be able to
inquire into and decide on the fact.
In his letter of the 12th of July, 1793, the Secretary writes, the
President has determined to refer the questions concerning prizes "to
persons learned in the laws," and he requests that certain vessels
enumerated in the letter should not depart "until his ultimate
determination shall be made known."
In his letter of the 7th of August, 1793, the Secretary informs Mr.
Genet that the President considers the United States as bound "to
effectuate the restoration of, or to make compensation for, prizes which
shall have been made of any of the parties at war with France,
subsequent to the 5th day of June last, by privateers fitted out of our
ports." That it is consequently expected that Mr. Genet will cause
restitution of such prizes to be made, and that the United States "will
cause restitution" to be made "of all such prizes as shall be hereafter
brought within their ports by any of the said privateers."
In his letter of the 10th of November, 1793, the Secretary informs Mr.
Genet, that for the purpose of obtaining testimony to ascertain the fact
of capture within the jurisdiction of the United States, the Governors
of the several States were requested, on receiving any such claim,
immediately to notify thereof the Attorneys of their several districts,
whose duty it would be to give notice "to the principal agent of both
parties, and also to the Consuls of the nations interested; and to
recommend to them to appoint by mutual consent arbiters to decide
whether the capture was made within the jurisdiction of the United
States, as stated in my letter of the 8th inst., according to whose
award the Governor may proceed to deliver the vessel to the one or the
other party." "If either party refuse to name arbiters, then the
Attorney is to take depositions on notice, which he is to transmit for
the information and decision of the President." "This prompt procedure
is the more to be insisted on, as it will enable the President, by an
immediate delivery of the vessel and cargo to the party having title, to
prevent the injuries consequent on long delay."
In his letter of the 22d of November, 1793, the Secretary repeats, in
substance, his letter of the 12th of July and 7th of August, and says
that the determination to deliver up certain vessels, involved the brig
Jane, of Dublin, the brig Lovely Lass, and the brig Prince William
Henry. He concludes with saying: "I have it in charge to inquire of you,
sir, whether these three brigs have been given up according to the
determination of the President, and if they have not, to repeat the
requisition that they may be given up to their former owners."
Ultimately it was settled that the fact should be investigated in the
courts, but the decision was regulated by the principles established by
the Executive Department.
The decision, then, on the case of vessels captured within the American
jurisdiction, by privateers fitted out of the American ports, which the
gentleman from New York has cited with such merited approbation; which
he has declared to stand on the same principles with those which ought
to have governed the case of Thomas Nash; and which deserves the more
respect, because the Government of the United States was then so
circumstanced as to assure us that no opinion was lightly taken up, and
no resolution formed but on mature consideration; this decision, quoted
as a precedent and pronounced to be right, is found, on fair and full
examination, to be precisely and unequivocally the same with that which
was made in the case under consideration. It is a full authority to show
that, in the opinion always held by the American Government, a case
like that of Thomas Nash is a case for Executive and not Judicial
decision.
The clause in the constitution which declares that "the trial of all
crimes, except in cases of impeachment, shall be by jury," has also been
relied on as operating on the case, and transferring the decision on a
demand for the delivery of an individual from the Executive to the
Judicial Department.
But certainly this clause in the Constitution of the United States
cannot be thought obligatory on, and for the benefit of, the whole
world. It is not designed to secure the rights of the people of Europe
and Asia, or to direct and control proceedings against criminals
throughout the universe. It can then be designed only to guide the
proceedings of our own courts, and to prescribe the mode of punishing
offences committed against the Government of the United States, and to
which the jurisdiction of the nation may rightfully extend.
It has already been shown that the courts of the United States were
incapable of trying the crime for which Thomas Nash was delivered up to
justice. The question to be determined was, not how his crime should be
tried and punished, but whether he should be delivered up to a foreign
tribunal, which was alone capable of trying and punishing him. A
provision for the trial of crimes in the courts of the United States is
clearly not a provision for the performance of a national compact for
the surrender to a foreign Government of an offender against that
Government.
The clause of the constitution declaring that the trial of all crimes
shall be by jury, has never even been construed to extend to the trial
of crimes committed in the land and naval forces of the United States.
Had such a construction prevailed, it would most probably have
prostrated the constitution itself, with the liberties and the
independence of the nation, before the first disciplined invader who
should approach our shores. Necessity would have imperiously demanded
the review and amendment of so unwise a provision. If, then, this clause
does not extend to offences committed in the fleets and armies of the
United States, how can it be construed to extend to offences committed
in the fleets and armies of Britain or of France, or of the Ottoman or
Russian Empires?
The same argument applies to the observations on the seventh article of
the amendments to the constitution. That article relates only to trials
in the courts of the United States, and not to the performance of a
contract for the delivery of a murderer not triable in those courts.
In this part of the argument, the gentleman from New York has presented
a dilemma, of a very wonderful structure indeed. He says that the
offence of Thomas Nash was either a crime or not a crime. If it was a
crime, the constitutional mode of punishment ought to have been
observed; if it was not a crime, he ought not to have been delivered up
to a foreign Government, where his punishment was inevitable.
It had escaped the observation of that gentleman, that if the murder
committed by Thomas Nash was a crime, yet it was not a crime provided
for by the constitution, or triable in the courts of the United States;
and that if it was not a crime, yet it is the precise case in which his
surrender was stipulated by treaty. Of this extraordinary dilemma, then,
the gentleman from New York is, himself, perfectly at liberty to retain
either horn. He has chosen to consider it as a crime, and says it has
been made a crime by treaty, and is punished by sending the offender out
of the country.
The gentleman is incorrect in every part of his statement. Murder on
board a British frigate is not a crime created by treaty. It would have
been a crime of precisely the same magnitude had the treaty never been
formed. It is not punished by sending the offender out of the United
States. The experience of this unfortunate criminal, who was hung and
gibbeted, evinced to him that the punishment of his crime was of a much
more serious nature than mere banishment from the United States.
The gentleman from Pennsylvania and the gentleman from Virginia have
both contended that this was a case proper for the decision of the
courts, because points of law occurred, and points of law must have been
decided in its determination.
The points of law which must have been decided, are stated by the
gentleman from Pennsylvania to be, first, a question whether the offence
was committed within the British jurisdiction; and, secondly, whether
the crime charged was comprehended within the treaty.
It is true, sir, these points of law must have occurred, and must have
been decided; but it by no means follows that they could only have been
decided in court. A variety of legal questions must present themselves
in the performance of every part of Executive duty, but these questions
are not therefore to be decided in court. Whether a patent for land
shall issue or not is always a question of law, but not a question which
must necessarily be carried into court. The gentleman from Pennsylvania
seems to have permitted himself to have been misled by the
misrepresentation of the constitution, made in the resolutions of the
gentleman from New York; and, in consequence of being so misled, his
observations have the appearance of endeavoring to fit the constitution
to his arguments, instead of adapting his arguments to the constitution.
When the gentleman has proved that these are questions of law, and that
they must have been decided by the President, he has not advanced a
single step towards proving that they were improper for Executive
decision. The question whether vessels captured within three miles of
the American coast, or by privateers fitted out in the American ports,
were legally captured or not, and whether the American Government was
bound to restore them, if in its power, were questions of law; but they
were questions of political law, proper to be decided, and they were
decided by the Executive, and not by the courts.
The _casus foederis_ of the guarantee was a question of law, but no
man could have hazarded the opinion that such a question must be carried
into court, and can only be there decided. So the _casus foederis_,
under the twenty-seventh article of the treaty with Great Britain, is a
question of law, but of political law. The question to be decided is,
whether the particular case proposed be one in which the nation has
bound itself to act, and this is a question depending on principles
never submitted to courts.
If a murder should be committed within the United States, and the
murderer should seek an asylum in Britain, the question whether the
_casus foederis_ of the twenty-seventh article had occurred, so that
his delivery ought to be demanded, would be a question of law, but no
man would say it was a question which ought to be decided in the courts.
When, therefore, the gentleman from Pennsylvania has established, that
in delivering up Thomas Nash, points of law were decided by the
President, he has established a position which in no degree whatever
aids his argument.
The case was in its nature a national demand made upon the nation. The
parties were the two nations. They cannot come into court to litigate
their claims, nor can a court decide on them. Of consequence, the demand
is not a case for judicial cognizance.
The President is the sole organ of the nation in its external relations,
and its sole representative with foreign nations. Of consequence, the
demand of a foreign nation can only be made on him.
He possesses the whole Executive power. He holds and directs the force
of the nation. Of consequence, any act to be performed by the force of
the nation is to be performed through him.
He is charged to execute the laws. A treaty is declared to be a law. He
must then execute a treaty, where he, and he alone, possesses the means
of executing it.
The treaty, which is a law, enjoins the performance of a particular
object. The person who is to perform this object is marked out by the
constitution, since the person is named who conducts the foreign
intercourse, and is to take care that the laws be faithfully executed.
The means by which it is to be performed, the force of the nation, are
in the hands of this person. Ought not this person to perform the
object, although the particular mode of using the means has not been
prescribed? Congress, unquestionably, may prescribe the mode, and
Congress may devolve on others the whole execution of the contract; but,
till this be done, it seems the duty of the Executive Department to
execute the contract by any means it possesses.
The gentleman from Pennsylvania contends that, although this should be
properly an Executive duty, yet it cannot be performed until Congress
shall direct the mode of performance. He says that, although the
jurisdiction of the courts is extended by the constitution to all cases
of admiralty and maritime jurisdiction, yet if the courts had been
created without any express assignment of jurisdiction, they could not
have taken cognizance of cases expressly allotted to them by the
constitution. The Executive, he says, can, no more than courts, supply a
legislative omission.
It is not admitted that, in the case stated, courts could not have taken
jurisdiction. The contrary is believed to have been the correct opinion.
And although the Executive cannot supply a total Legislative omission,
yet it is not admitted or believed that there is such a total omission
in this case.
The treaty, stipulating that a murderer shall be delivered up to
justice, is as obligatory as an act of Congress making the same
declaration. If, then, there was an act of Congress in the words of the
treaty, declaring that a person who had committed murder within the
jurisdiction of Britain, and sought an asylum within the territory of
the United States, should be delivered up by the United States, on the
demand of His Britannic Majesty, and such evidence of his criminality,
as would have justified his commitment for trial, had the offence been
here committed; could the President, who is bound to execute the laws,
have justified the refusal to deliver up the criminal, by saying, that
the Legislature had totally omitted to provide for the case.
The Executive is not only the constitutional department, but seems to be
the proper department to which the power in question may most wisely and
most safely be confided.
The department which is intrusted with the whole foreign intercourse of
the nation, with the negotiation of all its treaties, with the power of
demanding a reciprocal performance of the article, which is accountable
to the nation for the violation of its engagements with foreign nations,
and for the consequences resulting from such violation, seems the proper
department to be intrusted with the execution of a national contract
like that under consideration.
If, at any time, policy may temper the strict execution of the contract,
where may that political discretion be placed so safely as in the
department whose duty it is to understand precisely the state of the
political intercourse and connection between the United States and
foreign nations, to understand the manner in which the particular
stipulation is explained and performed by foreign nations, and to
understand completely the state of the Union?
This department, too, independent of judicial aid, which may, perhaps,
in some instances, be called in, is furnished with a great law officer,
whose duty it is to understand and to advise when the _casus foederis_
occurs. And if the President should cause to be arrested under the
treaty an individual who was so circumstanced as not to be properly the
object of such an arrest, he may perhaps bring the question of the
legality of his arrest before a judge, by a writ of habeas corpus.
It is then demonstrated, that, according to the principles of the
American Government, the question whether the nation has or has not
bound itself to deliver up any individual, charged with having committed
murder or forgery within the jurisdiction of Britain, is a question the
power to decide which rests alone with the Executive Department.
It remains to inquire whether, in exercising this power, and in
performing the duty it enjoins, the President has committed an
unauthorized and dangerous interference with judicial decisions.
That Thomas Nash was committed originally at the instance of the British
Consul at Charleston, not for trial in the American courts, but for the
purpose of being delivered up to justice in conformity with the treaty
between the two nations, has been already so ably argued by the
gentleman from Delaware, that nothing further can be added to that
point. He would therefore, Mr. MARSHALL said, consider the case as if
Nash had been delivered up instead of having been committed for trial.
Admitting even this to have been the fact, the conclusions which have
been drawn from it were by no means warranted.
Gentlemen had considered it as an offence against judicial authority,
and a violation of judicial rights, to withdraw from their sentence a
criminal against whom a prosecution had been commenced. They had treated
the subject as if it was the privilege of courts to condemn to death the
guilty wretch arraigned at their bar, and that to intercept the judgment
was to violate the privilege. Nothing can be more incorrect than this
view of the case. It is not the privilege, it is the sad duty of courts
to administer criminal judgment. It is a duty to be performed at the
demand of the nation, and with which the nation has a right to dispense.
If judgment of death is to be pronounced, it must be at the prosecution
of the nation, and the nation may at will stop that prosecution. In this
respect the President expresses constitutionally the will of the nation;
and may rightfully, as was done in the case at Trenton, enter a _nolle
prosequi_, or direct that the criminal be prosecuted no farther. This is
no interference with judicial decisions, nor any invasion of the
province of a court. It is the exercise of an indubitable and a
constitutional power. Had the President directed the Judge of Charleston
to decide for or against his own jurisdiction, to condemn or acquit the
prisoner, this would have been a dangerous interference with judicial
decisions, and ought to have been resisted. But no such direction has
been given, nor any such decision been required. If the President
determined that Thomas Nash ought to have been delivered up to the
British Government for a murder committed on board a British frigate,
provided evidence of the fact was adduced, it was a question which duty
obliged him to determine, and which he determined rightly. If, in
consequence of this determination, he arrested the proceedings of a
court on a national prosecution, he had a right to arrest and to stop
them, and the exercise of this right was a necessary consequence of the
determination of the principal question. In conforming to this decision,
the court has left open the question of its jurisdiction. Should another
prosecution of the same sort be commenced, which should not be suspended
but continued by the Executive, the case of Thomas Nash would not bind
as a precedent against the jurisdiction of the court. If it should even
prove that, in the opinion of the Executive, a murder committed on board
a foreign fleet was not within the jurisdiction of the court, it would
prove nothing more; and though this opinion might rightfully induce the
Executive to exercise his power over the prosecution, yet if the
prosecution was continued, it would have no influence with the court in
deciding on its jurisdiction.
Taking the fact, then, even to be as the gentlemen in support of the
resolutions would state it, the fact cannot avail them.
It is to be remembered, too, that in the case stated to the President,
the Judge himself appears to have considered it as proper for Executive
decision, and to have wished that decision. The President and Judge seem
to have entertained, on this subject, the same opinion, and in
consequence of the opinion of the Judge, the application was made to the
President.