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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.

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It is said that the then President of the United | executive opinion, that the case was not a case States declared the incompetency of the courts, for executive decision. The contrary is clearly judges, and officers, to execute this contract avowed. It is true, that when an individual, claim in court, the executive acknowledges in without an act of the legislature. But the then claiming the property as his, had asserted that President made no such declaration. 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 private suit instituted by an individual, assertbefore the executive as a national demand. A ing 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 will of the government. The opinion, therefore, can, without impropriety, be dismissed at the given in this letter, is unquestionably correct; but it is certainly misunderstood, when it is considered as being an opinion that the question decision. was not in its nature a question for executive

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 encomiun on the late President; and to consider his conduct as furnishing an example worthy the imitation

of his successor.

It must be 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. 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 restoradicial department. The principle, then, accordtion is to be performed by the executive or juing to this letter, is not submitted to the courtswhether a vessel captured within a given distance of the American coast, was or was not captured within the jurisdiction of the United the courts, but by the executive. The doubt States, was a question not to be determined by 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 Having noticed the particular letters cited by made by a nation stands on different principles. the gentleman from New York, permit me now 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 a consultation between himself and the SecreJune, 1793. In that letter, the secretary states taries of the Treasury and War (the President assured of the President's way of thinking in being absent), in which (so well were they In the letter to Mr. Genet, the secretary says, those cases), it was determined that the vessels that the claimant having filed his libel against should be detained in the custody of the consuls, the ship William, in the court of admiralty, in the ports, until the government of the United there was no power which could take the ves-States shall be able to inquire into and decide sel 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

on the fact.

In his letter of the 12th of July, 1793, the Secretary writes, the President has determined persons learned in the laws," and he requests to refer the questions concerning prizes "to that certain vessels enumerated in the letter

should not depart "until his ultimate determi- | more respect, because the government of the nation shall be made known." United States was then so circumstanced as to

In his letter of the 7th of August, 1793, the assure us, that no opinion was lightly taken up, secretary informs Mr. Genet that the President and no resolution formed but on mature considconsiders the United States as bound "to effec-eration. This decision, quoted as a precedent tuate 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."

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.

This 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."

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 pre-ing vent 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 in the case of Thomas Nash; and which deserves the

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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 is, not how his crime shall be tried and punished, but whether he shall be delivered up to a foreign tribunal which is alone capable of try

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.

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appearance of endeavoring to fit the constitu-
tion 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 The been decided by the President, he has not advanced a single step towards proving that they were improper for executive decision. 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 It has escaped the observation of that gentle- its power, were questions of law, but they were man, that if the murder committed by Thomas questions of political law, proper to be decided, Nash was a crime, yet it was not a crime pro-and they were decided by the executive, and not vided for by the constitution, or triable in the by the courts. courts of the United States; and that if it was not a crime, yet it is the precise case in which Of his surrender was stipulated by treaty. this extraordinary dilemma then, the gentleman from New York is himself perfectly at liberty to retain either form.

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 guaranty 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 twenty-seventh article of the treaty with 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 fœderis of the twenty-seventh article had occurred, so that his delivery ought to be deun-manded, would be a question of law, but no man would say it was a question which ought to be decided in the 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 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 experience of this the United States. fortunate 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.

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 is in its nature a national demand The parties are the made upon the nation. 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.

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 The treaty, which is a law, enjoins the perbeen misled by the misrepresentation of the constitution made in the resolutions of the gen-formance of a particular object. The person tleman from New York; and, in consequence who is to perform this object is marked out by of being so misled, his observations have the the constitution, since the person is named who

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.

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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?

conducts the foreign intercourse, and is to take | litical discretion be placed so safely as in the
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, un-
questionably, may prescribe the mode, and
Congress may devolve on others the whole ex-
ecution of the contract; but, till this be done,
it seems the duty of the executive department
to execute the contract by any means it pos-

sesses.

The gentleman from Pennsylvania contends, that, although this should be properly an exexecutive duty, yet it cannot be performed until Congress shall direct the mode of performance. He says, that, although the juris diction 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 be 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 po

aid, which may, perhaps, in some instances, be This department, too, independent of judicial called in, is furnished with a great law officer, whose duty it is to understand and to advise President should cause to be arrested under when the casus fœderis occurs. the treaty an individual who was so circumAnd if the stanced 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 practice and according to the principles of It is then demonstrated, that, according to 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 jurisdecide which rests alone with the executive diction of Britain, is a question the power to department.

this power, and in performing the duty it enIt remains to inquire whether, in exercising joins, the President has committed an unauthorized and dangerous interference with judicial decisions.

at the instance of the British Consul at CharlesThat Thomas Nash was committed originally ton, 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. I will, therefore, consider the case as if Nash, instead of having been committed for the purposes of the treaty, had 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.

against judicial authority, and a violation of Gentlemen have considered it as an offence a criminal against whom a prosecution had judicial rights, to withdraw from their sentence been commenced. They have treated the subject as if it were the privilege of courts to contheir bar, and that to intercept the judgment demn to death the guilty wretch arraigned at 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;

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

The gentleman from Pennsylvania has said, that an impressed American seaman, who should commit homicide for the purpose of liberating himself from the vessel in which he was confined, ought not to be given up as a murderer. In this, I concur entirely with the gentleman. I believe the opinion to be unquestionably correct, as were the reasons that gentleman has given in support of it. I have never heard any American avow a contrary sentiment, nor do I believe a contrary sentiment could find a place in the bosom of any American. I cannot pretend, and do not pretend to know the opinion of the executive on the subject, because I have never heard the opinions of that department; but I feel the most perfect conviction, founded on the general conduct of the government, that it could never surrender an impressed American to the nation, which, in making the impressment, had committed a national injury.

and may rightfully, as was done in the case | you still longer for the purpose of noticing an at Trenton, enter a nolle prosequi, or direct observation which appears not to be considered that the criminal be prosecuted no further. by the gentleman who made it as belonging to This is no interference with judicial decisions, the argument. 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 at 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 its 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 gentleman in support of the resolutions has stated 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 of America 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 on the patience of the House, in arguing what has appeared to me to be the material points growing out of the resolutions, I regret the necessity of detaining

This belief is, in no degree, shaken by the conduct of the executive in this particular case. In my own mind, it is 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, I shall not resort to it, because to some it might seem a subterfuge. I defend 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 ministers, 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 that violence, and

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