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H. OF R.]
Case of Jonathan Robbins.

[MARCH, 1800 It has been contended that the conduct of mand. A private suit instituted by an individthe Executive on former occasions, similar to ual, asserting his claim to property, can only be this in principle, has been such as to evince ap controlled by that individual. The Executive opinion, even in that department, that the case can give no direction concerning it. But a pubin question is proper for the decision of the lic prosecution carried on in the name of the courts.

United States can, without impropriety, be disThe fact adduced to support this argument is missed at the will of the Government. The the determination of the late President on the opinion, therefore, given in this letter, is unques case of prizes made within the jurisdiction of tionably correct; but it is certainly misunderthe United States, or by privateers fitted out stood, when it is considered as being an opinjon in their ports.

that the question was not in its nature a question The nation was bound to deliver up those for Executive decision. prizes in like manner as the nation is now In the letter to Mr. Morris, the Secretary as bound to deliver up an individual demanded serts the principle, that vessels taken within under the 27th article of the treaty with our jurisdiction ought to be restored, but says, Britain. The duty was the same, and devolved it is yet unsettled whether the act of restoration on the same department.

is to be performed by the Executive or Judicial In quoting the decision of the Executive on Department. The principle, then, according that case, the gentleman from New York has to this letter, is not submitted to the courttaken occasion to bestow a high encomium on whether a vessel captured within a given disthe late President; and to consider his con- tance of the American coast, was or was not duct as furnishing an example worthy the imi- captured within the jurisdiction of the United tation of his successor. It must be the cause States, was a question not to be determined by of much delight to the real friends of that great the courts, but by the Executive. The doabt man; to those who supported his Administra- expressed is not what tribunal shall settle the tion while in office from a conviction of its wis- principle, but what tribunal shall settle the fact. dom and its virtue, to hear the unqualified In this respect, a doubt might exist in the case praise which is now bestowed on it by those of prizes, which could not exist in the case of a who had been supposed to possess different man. Individuals on each side claimed the opinions. If the measure now under conside- property, and therefore their rights could be ration shall be found, on examination, to be the brought into court, and there contested as same in principle with that which has been a case in law or equity. The demand of a cited, by its opponents, as a fit precedent for it, man made by a nation stands on different printhen may the friends of the gentleman now in ciples. office indulge the hope, that when he, like his Having noticed the particular letters cited by predecessor, shall be no more, his conduct too the gentleman from New York, permit me now, may be quoted as an example for the govern- said Mr. M., to ask the attention of the House ment of his successors.

to the whole course of Executive conduct on The evidence relied on to prove the opinion this interesting subject. of the then Executive on the case, consists It is first mentioned in a letter from the Secof two letters from the Secretary of State, the retary of State to Mr. Genet, of the 25th of one of the 29th of June, 1793, to Mr. Genet, June, 1793. In that letter, the Secretary states and the other of the 16th of August, 1793, to a consultation between himself and the Secre Mr. Morris.

| taries of the Treasury and War, (the President In the letter to Mr. Genet, the Secretary being absent,) in which (so well were they as says, that the claimant having filed his libel sured of the President's way of thinking in against the ship William, in the Court of Ad- those cases) it was determined that the vessels miralty, there was no power which could take should be detained in the custody of the Conthe vessel out of court until it had decided suls, in the ports, until the Government of the against its own jurisdiction; that having so de- United States shall be able to inquire into and cided, the complaint is lodged with the Exec-decide on the fact. utive, and he asks for evidence, to enable that In his letter of the 12th of July, 1793, the department to consider and decide finally on Secretary writes, the President has determined the subject.

to refer the questions concerning prizes " to It will be difficult to find in this letter an Ex- persons learned in the laws," and he requests ecutive opinion, that the case was not a case that certain vessels enumerated in the letter for Executive decision. The contrary is clearly should not depart “until his ultimate determinsavowed. It is true, that when an individual, tion shall be made known." claiming the property as his, had asserted that In his letter of the 7th of August, 1793, the claim in court, the Executive acknowledges in Secretary informs Mr. Genet that the President itself a want of power to dismiss or decide upon considers the United States as bound “to efthe claim thus pending in court. But this ar- fectuate the restoration of, or to make compengues no opinion of a want of power in itself to sation for, prizes which shall have been made decide upon the case, if, instead of being carried of any of the parties at war with France, subbefore a court as an individual claim, it is sequent to the 5th day of June last, by privabronght before the Executive as a national de-i teers fitted out of our ports." That it is conse

MARCH, 1800.]
Case of Jonathan Robbins.

[H. of R. quently expected that Mr. Genet will cause | American Government, a case like that of restitution of such prizes to be made, and that Thomas Nash is a case for Executive and not the United States “ will cause restitution" to Judicial decision. be made of all such prizes as shall be here- The clause in the constitution which declares after brought within their ports by any of the that “the trial of all crimes, except in cases of said privateers."

impeachment, shall be by jury," has also been In his letter of the 10th of November, 1793, relied on as operating on the case, and transferthe Secretary informs Mr. Genet, that for the ring the decision on a demand for the delivery purpose of obtaining testimony to ascertain the of an individual from the Executive to the Jufact of capture within the jurisdiction of the dicial Department. United States, the Governors of the several But certainly this clause in the Constitution States were requested, on receiving any such of the United States cannot be thought obligaclaim, immediately to notify thereof the Attor-tory on, and for the benefit of, the whole world. neys of their several districts, whose duty it It is not designed to secure the rights of the peowould be to give notice to the principal agent ple of Europe and Asia, or to direct and conof both parties, and also to the Consuls of the trol proceedings against criminals throughout nations interested; and to recommend to them the universe. It can then be designed only to to appoint by mutual consent arbiters to de- guide the proceedings of our own courts, and to cide whether the capture was made within the prescribe the mode of punishing offences comjurisdiction of the United States, as stated in mitted against the Government of the United my letter of the 8th inst., according to whose States, and to which the jurisdiction of the naaward the Governor may proceed to deliver tion may rightfully extend. the vessel to the one or the other party." "If It has already been shown that the courts of either party refuse to name arbiters, then the the United States were incapable of trying the Attorney is to take depositions on notice, which crime for which Thomas Nash was delivered up he is to transmit for the information and de- to justice. The question to be determined was, tision of the President." “ This prompt pro- not how his crime should be tried and punished, cedure is the more to be insisted on, as it will but whether he should be delivered up to a enable the President, by an immediate delivery foreign tribunal, which was alone capable of of the vessel and cargo to the party having trying and punishing him. A provision for the title, to prevent the injuries consequent on long trial of crimes in the courts of the United States delay."

is clearly not a provision for the performance In his letter of the 22d of November, 1793, of a national compact for the surrender to a the Secretary repeats, in substance, his letter of foreign Government of an offender against that the 12th of July and 7th of August, and says Government. that the determination to deliver un certain The clause of the constitution declaring that vessels, involved the brig Jane, of Dublin, the the trial of all crimes shall be by jury, has never brig Lovely Lass, and the brig Prince Wil- even been construed to extend to the trial of liam Henry. He concludes with saying: “I crimes committed in the land and naval forces have it in charge to inquire of you, sir, whether of the United States. Had such a construction these three brigs have been given up according prevailed, it would most probably bave progto the determination of the President, and if trated the constitution itself, with the liberties they have not, to repeat the requisition that and the independence of the nation, before the they may be given up to their former owners.” first disciplined invader who should approach

Ultimately it was settled that the fact should our shores. Necessity would have imperiously be investigated in the courts, but the decision demanded the review and amendment of so unwas regulated by the principles established by wise a provision. If, then, tbis clause does not the Executive Department.

extend to offences committed in the fleets and The decision, then, on the case of vessels cap armies of the United States, how can it be contured within the American jurisdiction, by pri- | strued to extend to offences committed in the vateers fitted out of the American ports, which fleets and armies of Britain or of France, or of the gentleman from New York has cited with the Ottoman or Russian Empires ? such merited approbation; which he has de- ! The same argument applies to the observ&clared to stand on the same principles with tions on the seventh article of the amendments. those which ought to have governed the case to the constitution. That article relates only of Thomas Nash; and which deserves the more to trials in the courts of the United States, respect, because the Government of the United and not to the performance of a contract for States was then so circumstanced as to assure the delivery of a murderer not triable in those us that no opinion was lightly taken up, and no courts. resolution formed but on mature consideration;! In this part of the argument, the gentleman this decision, quoted as a precedent and pro- from New York has presented a dilemma, of a nounced to be right, is found, on fair and full very wonderful structure indeed. He says that examination, to be precisely and unequivocally the offence of Thomas Nash was either a the same with that which was made in the case crime or not a crime. If it was a crime, the under consideration. It is a full authority to constitutional mode of punishment ought to show that, in tho opinion always held by the have been observed; if it was not a crime, ho

VOL. II.-30

H. OF R.)
Case of Jonathan Robbins.

[MARCH, 1800. ought not to have been delivered up to a for- | captured or not, and whether the American eign Government, where his punishment was Government was bound to restore them, if in inevitable.

its power, were questions of law; but they It had escaped the observation of that gentle-were questions of political law, proper to be deman, that if the murder committed by Thomas cided, and they were decided by the Executive, Nash was a crime, yet it was not a crime pro- and not by the courts. vided for by the constitution, or triable in the The casus fæderis of the guarantee was a que courts of the United States; and that if it was tion of law, but no man could have hazarded not a crime, yet it is the precise case in which the opinion that such a question must be carbis surrender was stipulated by treaty. Of this ried into court, and can only be there decid. extraordinary dilemma, then, the gentleman ed. So the casus foederis, under the twentyfrom New York is, himself, perfectly at liberty seventh article of the treaty with Great Britain, to retain either horn. He has chosen to con- is a question of law, but of political law. The sider it as a crime, and says it has been made a question to be decided is, whether the particocrime by treaty, and is punished by sending the lar case proposed be one in which the nation offender out of the country.

| has bound itself to act, and this is a question The gentleman is incorrect in every part of depending on principles never submitted to his statement. Murder on board a British courts. frigate is not a crime created by treaty. It! If a murder should be committed within the would have been a crime of precisely the same United States, and the murderer should seek se magnitude had the treaty never been formed. asylum in Britain, the question whether the It is not punished by sending the offender out casus fæderis of the twenty-seventh article had of the United States. The experience of this occurred, so that his delivery ought to be deunfortunate criminal, who was hung and gib- manded, would be a question of law, bat do beted, evinced to him that the punishment of his man would say it was a question which ought crime was of a much more serious nature than to be decided in the courts. mere banishment from the United States.

When, therefore, the gentleman from PennThe gentleman from Pennsylvania and the sylvania has established, that in delivering op gentleman from Virginia have both contended Thomas Nash, points of law were decided by that this was a case proper for the decision of the President, he has established a positica the courts, because points of law occurred, and which in no degree whatever aids his argopoints of law must have been decided in its de- ment. termination.

The case was in its nature a national demand The points of law which must have been de- made upon the nation. The parties were the cided, are stated by the gentleman from Penn- two nations. They cannot come into court to sylvania to be, first, a question whether the litigate their claims, nor can a court decide on offence was committed within the British ju- them. Of consequence, the demand is not s risdiction; and, secondly, whether the crime case for judicial cognizance. charged was comprehended within the treaty. The President is the sole organ of the nation

It is true, sir, these points of law must have in its external relations, and its sole representaoccurred, and must have been decided; but it tive with foreign nations. Of consequence, the by no means follows that they could only have demand of a foreign nation can only be made been decided in court. A variety of legal on him. questions must present themselves in the per- . He possesses the whole Executive power. He formance of every part of Executive duty, but holds and directs the force of the nation. Of these questions are not therefore to be decided consequence, any act to be performed by the in court. Whether a patent for land shall issue force of the nation is to be performed through or not is always a question of law, but not a him. question which must necessarily be carried into He is charged to execute the laws. A treaty court. The gentleman from Pennsylvania is declared to be a law. He must then execute seems to have permitted himself to have been a treaty, where he, and he alone, possesses the misled by the misrepresentation of the constitu- means of executing it. tion, made in the resolutions of the gentleman The treaty, which is a law, enjoins the perfrom New York; and, in consequence of being formance of a particular object. The person so misled, his observations have the appearance who is to perform this object is marked out by of endeavoring to fit the constitution to his ar the constitution, since the person is named who guments, instead of adapting his arguments to conducts the foreign intercourse, and is to take the constitution.

care that the laws be faithfully executed. The When the gentleman has proved that these means by which it is to be performed, the force are questions of law, and that they must have of the nation, are in the hands of this person. been decided by the President, he has not ad-Ought not this person to perform the object, vanced a single step towards proving that they although the particular mode of using the were improper for Executive decision. The means has not been prescribed? Congress, unquestion whether vessels captured within three questionably, may prescribe the mode, and miles of the American coast, or by privateers Congress may devolve on others the whole fitted out in the American ports, were legally I execution of the contract; but, till this be

MARCH, 1800.)
Case of Jonathan Robbins.

[H. OF R. done, it seerns the duty of the Executive De- | aid, which may, perhaps, in some instances, be partment to execute the contract by any means called in, is furnished with a great law officer, it possesses.

whose duty it is to understand and to advise The gentleman from Pennsylvania contends | when the casus fæderis occurs. And if the that, although this should be properly an Exec-President should cause to be arrested under the utive duty, yet it cannot be performed until treaty an individual who was so circumstanced Congress shall direct the mode of performance. as not to be properly the object of such an arHe says that, although the jurisdiction of the rest, he may perhaps bring the question of the courts is extended by the constitution to all legality of his arrest before a judge, by a writ cases of admiralty and maritime jurisdiction, of habeas corpus. yet if the courts had been created without any It is then demonstrated, that, according to express assignment of jurisdiction, they could the principles of the American Government, the not have taken cognizance of cases expressly question whether the nation has or has not allotted to them by the constitution. The Ex-bound itself to deliver up any individual, ecutive, he says, can, no more han courts, sup- charged with having committed murder or ply a legislative omission,

forgery within the jurisdiction cf Britain, is a It is not admitted that, in the case stated, question the power to decide which rests alone courts could not have taken jurisdiction. The with the Executive Department. contrary is believed to have been the correct It remains to inquire whether, in exercising opinion. And although the Executive cannot this power, and in performing the duty it ensupply a total Legislative omission, yet it is not joins, the President has committed an unauadmitted or believed that there is such a total thorized and dangerous interference with juomission in this case.

dicial decisions. The treaty, stipulating that a murderer shall That Thomas Nash was committed originally be delivered up to justice, is as obligatory as an at the instance of the British Consul at Charlesact of Congress making the same declaration. ton, not for trial in the American courts, but If, then, there was an act of Congress in the for the purpose of being delivered up to justice words of the treaty, declaring that a person who in conformity with the treaty between the two had committed murder within the jurisdiction nations, has been already so ably argued by the of Britain, and sought an asylum within the gentleman from Delaware, that nothing further territory of the United States, should be deliv- can be added to that point. He would thereered up by the United States, on the demand fore, Mr. MARSHALL said, consider the case as of His Britannic Majesty, and such evidence of if Nash had been delivered up instead of having his criminality, as would have justified his com- been committed for trial. Admitting even this mitment for trial, had the offence been here to have been the fact, the conclusions which committed; could the President, who is bound have been drawn from it were by no means to execute the laws, have justified the refusal to warranted. deliver up the criminal, by saying, that the Gentlemen had considered it as an offence Legislature had totally omitted to provide for against judicial authority, and a violation of juthe case.

dicial rights, to withdraw from their sentence a The Executive is not only the constitutional criminal against whom a prosecution had been department, but seems to be the proper depart-commenced. They had treated the subject as ment to which the power in question may most if it was the privilege of courts to condemn to wisely and most safely be confided.

| death the guilty wretch arraigned at their bar, The department which is intrusted with the and that to intercept the judgment was to viowhole foreign intercourse of the nation, with late the privilege. Nothing can be more inthe negotiation of all its treaties, with the correct than this view of the case. It is not power of demanding a reciprocal performance the privilege, it is the sad duty of courts to adof the article, which is accountable to the minister criminal judgment. It is a duty to bo nation for the violation of its engagements with performed at the demand of the nation, and foreign nations, and for the consequences re- with which the nation has a right to dispense. sulting from such violation, seems the pro- If judgment of death is to be pronounced, it per departinent to be intrusted with the execu- must be at the prosecution of the nation, and tion of a national contract like that under the nation may at will stop that prosecution. consideration.

In this respect the President expresses constiIf, at any time, policy may temper the strict tutionally the will of the nation; and may execution of the contract, where may that po- rightfully, as was done in the case at Trenton, litical discretion be placed so safely as in the enter a nolle prosequi, or direct that the crimi. department whose duty it is to understand nal be prosecuted no farther. This is no inprecisely the state of the political intercourse terference with judicial decisions, nor any inand connection between the United States and vasion of the province of a court. It is the exforeign nations, to understand the manner in ercise of an indubitable and a constitutional which the particular stipulation is explained power. Had the President directed the Judge and performed by foreign nations, and to un- of Charleston to decide for or against his own derstand completely the state of the Union jurisdiction, to condemn or acquit the prisoner,

This department, too, independent of judicial this would have been a dangerous interference

H. OF R.]
Case of Jonathan Robbins.

[MARCH, 1800. with judicial decisions, and ought to have been commit homicide for the purpose of liberating resisted. But no such direction has been given, himself from the vessel in which he was connor any such decision been required. If the fined, ought not to be given up as a murdera. President determined that Thomas Nash ought In this, Mr. M. said, he concurred entirely with to have been delivered up to the British Gov- that gentleman. He believed the opinion to be ernment for a murder committed on board a unquestionably correct, as were the reasons that British frigate, provided evidence of the fact gentleman had given in support of it. He had was adduced, it was a question which duty never heard any American avow a contrary obliged him to determine, and which he de- sentiment, nor did he believe a contrary sentitermined rightly. If, in consequence of this ment could find a place in the bosom of an determination, he arrested the proceedings of a American. He could not pretend, and did not court on a national prosecution, he had a right pretend to know the opinion of the Executive to arrest and to stop them, and the exercise of on this subject, because he had never heard the this right was a necessary consequence of the opinions of that department; but he felt the determination of the principal question. In most perfect conviction, founded on the geneconforming to this decision, the court has left ral conduct of the Government, that it could open the question of its jurisdiction. Should never surrender an impressed American to the another prosecution of the same sort be com- nation which, in making the impressment, had menced, which should not be suspended but committed a national injury. continued by the Executive, the case of Thomas This belief was in no degree shaken by the Nash would not bind as a precedent against the conduct of the Executive in this particular case. iurisdiction of the court. If it should even In his own mind, it was a sufficient defence prove that, in the opinion of the Executive, a of the President from an imputation of this murder committed on board a foreign fleet was kind, that the fact of Thomas Nash being an not within the jurisdiction of the court, it would impressed American, was obviously not conprove nothing more; and though this opinion templated by him in the decision he made of might rightfully induce the Executive to exer- the principles of the case. Consequently, if a cise his power over the prosecution, yet if the new circumstance occurred, which would essenprosecution was continued, it would have no tially change the case decided by the President, influence with the court in deciding on its ju- the Judge ought not to have acted under that risdiction.

decision, but the new circumstance ought to Taking the fact, then, even to be as the gentle have been stated. Satisfactory as this defence men in support of the resolutions would state might appear, he should not resort to it, because it, the fact cannot avail them.

to some it might seem a subterfuge. He de It is to be remembered, too, that in the case fended the conduct of the President on other stated to the President, the Judge himself ap- and still stronger ground. pears to have considered it as proper for Execu- The President had decided that a murder tive decision, and to have wished that decision. committed on board a British frigate on the The President and Judge seem to have enter- high seas, was within the jurisdiction of thst tained, on this subject, the same opinion, and in nation, and consequently within the twenty: consequence of the opinion of the Judge, the seventh article of its treaty with the United application was made to the President.

States. He therefore directed Thomas Nash to It has then been demonstrated

be delivered to the British Minister, if satisfieIst. That the case of Thomas Nash, as stated tory evidence of the murder should be addnced. to the President, was completely within the The sufficiency of the evidence was submitted twenty-seventh article of the treaty between entirely to the Judge. the United States and Great Britain.

If Thomas Nash had committed a murder, 2d. That this question was proper for Execu- the decision was that he should be surrendered tive, and not for Judicial decision; and, to the British Minister; but if he had not com

3d. That in deciding it, the President is not mitted a murder, he was not to be surrendered. chargeable with an interference with judicial Had Thomas Nash been an impressed Ameridecisions.

| can, the homicide on board the Hermione would, After trespassing so long, Mr. MARSHALL said, most certainly, not have been a murder. on the patience of the House, in arguing what The act of impressing an American, is an act had appeared to him to be the material points of lawless violence. The confinement on board growing out of the resolutions, he regretted the a vessel, is a continuation of the violence, and an necessity of detaining them still longer for the additional outrage. Death committed within the purpose of noticing an observation which ap- United States, in resisting such violence, would peared not to be considered by the gentleman not have been murder, and the person giving who made it as belonging to the argument. the wound could not have been treated as a

The subject introduced by this observation, murderer. Thomas Nash was only to have been however, was so calculated to interest the pubs delivered up to justice on such evidence as, had lic feelings, that he must be excused for stating the fact been committed within the United his opinion on it.

States, would have been sufficient to have inThe gentleman from Pennsylvania had said duced his commitment and trial for murder. that an impressed American seaman, who should Of consequence, the decision of the President

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