Case of Jonathan Robbins.

In his letter of the 12th of July, 1793, the Secretary writes, the President has determined 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 determinaavowed. 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 privabrought before the Executive as a national de-teers fitted out of our ports." That it is conse

Case of Jonathan Robbins.

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 hereafter brought within their ports by any of the said privateers."

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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 were questions of political law, proper to be decided, and they were decided by the Executive, and not by the courts.

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 casus fœderis 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 fœderis, under the twentyseventh article of the treaty with Great Britain, is a question of law, but of political law. The question to be decided is, whether the particnlar 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.

The gentleman is incorrect in every part of his statement. Murder on board a British 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 an magnitude had the treaty never been formed. asylum in Britain, the question whether the It is not punished by sending the offender out casus fœderis 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, but no beted, 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 ju risdiction; 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

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 representstive 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

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. 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

MARCH, 1800.]

Case of Jonathan Robbins.

[H. OF R.

done, it seems the duty of the Executive De- | aid, which may, perhaps, in some instances, be partment to execute the contract by any means it possesses.

called in, is furnished with a great law officer, whose duty it is to understand and to advise when the casus fœderis 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.

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 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 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 departinent 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

charged with having committed murder or forgery within the jurisdiction cf 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 crimi nal 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

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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 counor any such decision been required. If the fined, ought not to be given up as a murderer. 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 Nash would not bind as a precedent against the iurisdiction 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.

It has then been demonstrated

1st. That the case of Thomas Nash, as stated to the President, was completely within the twenty-seventh article of the treaty between the United States and Great Britain.

2d. That this question was proper for Executive, and not for Judicial decision; and,

3d. That in deciding it, the President is not chargeable with an interference with judicial decisions.

After trespassing so long, Mr. MARSHALL said, on the patience of the House, in arguing what had appeared to him to be the material points growing out of the resolutions, he regretted the necessity of detaining them still longer for the purpose of noticing an observation which appeared not to be considered by the gentleman who made it as belonging to the argument.

This belief was in no degree shaken by the conduct of the Executive in this particular case. In his own mind, it was a sufficient defence of the President from an imputation of this kind, that the fact of Thomas Nash being an impressed American, was obviously not contemplated by him in the decision he made on the principles of the case. Consequently, if a new circumstance occurred, which would essentially change the case decided by the President, the Judge ought not to have acted under that decision, but the new circumstance ought to have been stated. Satisfactory as this defence might appear, he should not resort to it, because to some it might seem a subterfuge. He defended the conduct of the President on other and still stronger ground.

The President had decided that a murder committed on board a British frigate on the high seas, was within the jurisdiction of that nation, and consequently within the twentyseventh article of its treaty with the United States. He therefore directed Thomas Nash to be delivered to the British Minister, if satisfactory evidence of the murder should be adduced. The sufficiency of the evidence was submitted entirely to the Judge.

If Thomas Nash had committed a murder, the decision was that he should be surrendered to the British Minister; but if he had not committed a murder, he was not to be surrendered.

Had Thomas Nash been an impressed American, the homicide on board the Hermione would, most certainly, not have been a murder.

The act of impressing an American, is an act of lawless violence. The confinement on board a vessel, is a continuation of the violence, and an additional outrage. Death committed within the United States, in resisting such violence, would not have been murder, and the person giving the wound could not have been treated as a murderer. Thomas Nash was only to have been delivered up to justice on such evidence as, had the fact been committed within the United 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

The subject introduced by this observation, however, was so calculated to interest the public feelings, that he must be excused for stating his opinion on it.