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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, without an act of the legislature. But the then claiming the property as his, had asserted that President made no such declaration.
claim in court, the executive acknowledges in He has said that some legislative provision is itself a want of power to dismiss or decide upon requisite to carry the stipulations of the conven- the claim thus pending in court. But this artion into full effect. This, however, is by no gues no opinion of a want of power in itself to means declaring the incompetency of a depart-decide upon the case, if, instead of being carried ment to perform an act stipulated by treaty, before a court as an individual claim, it is brought until the legislative authority shall direct its | before the executive as a national 'demand. A performance.
private suit instituted by an individual, assertIt has been contended that the conduct of ing his claim to property, can only be controlled the executive on former occasions, similar to by that individual. The executive can give no this in principle, has been such as to evince an direction concerning it. But a public prosecuopinion, even in that department, that the case tion carried on in the name of the United States in question is proper for the decision of the | can, without impropriety, be dismissed at the courts.
will of the government. The opinion, therefore, The fact adduced to support this argument given in this letter, is unquestionably correct; is the determination of the late President on but it is certainly misunderstood, when it is the case of prizes made within the jurisdiction considered as being an opinion that the question of the United States, or by privateers fitted out was not in its nature a question for executive in their ports.
decision. The nation was bound to deliver up those In the letter to Mr. Morris, the secretary asprizes in like manner, as the nation is now serts the principle, that vessels taken within bound to deliver up an individual demanded our jurisdiction ought to be restored, but says, under the 27th article of the treaty with Britain. it is yet unsettled whether the act of restoraThe duty was the same, and devolved on the tion is to be performed by the executive or jusame department.
dicial department. The principle, then, accordIn quoting the decision of the executive on ing to this letter, is not submitted to the courts that case, the gentleman from New York has whether a vessel captured within a given distaken occasion to bestow a high encomiuin on tance of the American coast, was or was not the late President; and to consider his conduct captured within the jurisdiction of the United as furnishing an example worthy the imitation States, was a question not to be determined by of his successor.
| the courts, but by the executive. The doubt It must be cause of much delight to the real expressed is, not what tribunal shall settle the friends of that great man; to those who sup-principle, but what tribunal shall settle the fact. ported his administration while in office from a In this respect, a doubt might exist in the case conviction of its wisdom and its virtue, to hear of prizes, which could not exist in the case of a the unqualified praise which is now bestowed man. Individuals on each side claimed the on it by those who had been supposed to pos property, and therefore their rights could be sess different opinions. If the measure now | brought into court, and there contested as a under consideration shall be found, on examina- case in law or equity. The demand of a man tion, to be the same in principle with that made by a nation stands on different principles. which has been cited by its opponents as a fit Having noticed the particular letters cited by precedent for it, then may the friends of the the gentleman from New York, permit me now gentleman now in office indulge the hope, that to ask the attention of the House to the whole when he, like his predecessor, shall be no more, course of executive conduct on this interesting his conduct too may be quoted as an example subject. for the government of his successors.
It is first mentioned in a letter from the SecThe evidence relied on to prove the opinion retary of State to Mr. Genet, of the 25th of of the then executive on the case, consists of June, 1793. In that letter, the secretary states two letters from the Secretary of State, the one a consultation between himself and the Secreof the 29th of June, 1793, to Mr. Genet, and taries of the Treasury and War (the President the other of the 16th of August, 1793, to Mr. being absent), in which (so well were they Morris.
| assured of the President's way of thinking in 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 inqnire into and decide sel out of court until it had decided against its on the fact. own jurisdiction; that having so decided, the In his letter of the 12th of July, 1793, the complaint is lodged with the executive, and he Secretary writes, the President has determined asks for evidence to enable that department to to refer the questions concerning prizes “to consider and decide finally on the subject. persons learned in the laws," and he requests
It will be difficult to find in this letter an | 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 bnt on mature considconsiders the United States as bound “to effec- eration. This decision, quoted as a precedent tuate the restoration of, or to make compensa- and pronounced to be right, is found, on fair tion for, prizes which shall have been made of and full examination, to be precisely and unany of the parties at war with France, subse-equivocally the same with that which was made quent to the 5th day of June last, by privateers in the case under consideration. It is a full fitted out of our ports.” That it is consequently authority to show, that, in the opinion always expected that Mr. Genet will cause restitution held by the American Government, a case like of such prizes to be made, and that the United that of Thomas Nash is a case for executive States “ will cause restitution” to be made "of and not judicial decision. all sach prizes as shall be hereafter brought This clause in the constitution which declares within their ports by any of the said priva- that “the trial of all crimes, except in cases of teers."
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 transthe secretary informs Mr. Genet, that for the ferring the decision on a demand for the depurpose of obtaining testimony to ascertain the livery of an individual from the executive to fact of capture within the jurisdiction of the the judicial 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 obliclaim, immediately to notify thereof the attor- gatory on, and for the benefit of the whole neys of their several districts, whose duty it world. It is not designed to secure the rights would be to give notice “to the principal agent of the people of Europe and Asia, or to direct of both parties, and also to the consuls of the and control proceedings against criminals nations interested ; and to recommend to them throughout the universe. It can then be deto appoint by mutual consent arbiters to decide signed only to guide the proceedings of our own whether the capture was made within the juris courts, and to prescribe the mode of punishing diction of the United States, as stated in my offences committed against the government of letter of the 8th inst., according to whose award the United States, and to which the jurisdiction the governor may proceed to deliver the vessel of the nation may rightfully extend. to the one or the other party." "If either party It has already been shown that the courts of refuse to name arbiters, then the attorney is to the United States were incapable of trying the take depositions on notice, which he is to trans- crime for which Thomas Nash was delivered up mit for the information and decision of the to justice. The question to be determined is, President.” “This prompt procedure is the not how his crime shall be tried and punished, more to be insisted on, as it will enable the but whether he shall be delivered up to a President, by an immediate delivery of the ves. foreign tribunal which is alone capable of trysel and cargo to the party having title, to pre-ing and punishing him. A provision for the vent the injuries consequent on long delay," trial of crimes in the courts of the United
In his letter of the 22d of November, 1793, States is clearly not a provision for the perthe secretary repeats, in substance, his letter formance of a national compact for the surrenof the 12th of July and 7th of August, and der to a foreign government of an offender says that the determination to deliver up cer- | against that government. tain vessels, involved the brig Jane of Dublin, The clause of the constitution declaring that the brig Lovely Lass, and the brig Prince Wil the trial of all crimes shall be by jury, has liam Henry. He concludes with saying: “I never even been construed to extend to the have it in charge to inquire of you, sir, whe-trial of crimes committed in the land and naval ther these three brigs have been given up ac- forces of the United States. Had such a concording to the determination of the President, struction prevailed, it would most probably and if they have not, to repeat the requisition have prostrated the constitution itself, with the that they may be given up to their former | liberties and the independence of the nation, beowners.
fore the first disciplined invader who should Ultimately it was settled that the fact should approach our shores. Necessity would have be investigated in the courts, but the decision imperiously demanded the review, and amendwas regulated by the principles established by ment of so unwise a provision. If then this the executive department.
clause does not extend to offences committed in The decision then on the case of vessels cap- the fleets and armies of the United States, how tured within the American jurisdiction, by can it be construed to extend to offences comprivateers fitted out of the American ports, mitted in the fleets and armies of Britain or of which the gentleman from New York has cited France, or of the Ottoman or Russian empires ? with such merited approbation; which he has The same argument applies to the observadeclared to stand on the same principles with tions on the seventh article of the amendments those which ought to have governed in the to the constitution. That article relates only case of Thomas Nash; and which deserves the I to trials in the courts of the United States, and
not to the performance of a contract for the appearance of endeavoring to fit the constitudelivery of a murderer nut triable in those tion to his arguments, instead of adapting his courts.
| arguments to the constitution. In this part of the argument, the gentleman When the gentleman has proved that these from New York has presented a dilemma, of aare questions of law, and that they must have very wonderful structure indeed. He says, been decided by the President, he has not adthat the offence of Thomas Nash was either a vanced a single step towards proving that they crime or not a crime. If it was a crime, the were improper for executive decision. The cunstitutional mode of punishment ought to question whether vessels captured within three have been observed; if it was not a crime, he miles of the American coast, or by privateers ought not to have been delivered up to a foreign fitted out in the American ports, were legally government, where his punishment was in- captured or not, and whether the American evitable.
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. The casus foederis of the guaranty was a quesnot a crime, yet it is the precise case in which tion of law, but no man could have hazarded his surrender was stipulated by treaty. Of the opinion that such a question must be carried this extraordinary dilemma then, the gentleman into court, and can only be there decided. So from New York is himself perfectly at liberty the casus fæderis, under the twenty-seventh to retain either form.
article of the treaty with Britain, is a question He has chosen to consider it as a crime, and of law, but of political law. The question to says it has been made a crime by treaty, and is be decided is, whether the particular case propunished by sending the offender out of the posed be one in which the nation has bound country.
itself to act, and this is a question depending The gentleman is incorrect in every part of on principles never submitted to courts. his statement. Murder on board a British fri- If a murder should be committed within the gate is not a crime created by treaty. It would United States, and the murderer should seek have been a crime of precisely the same mag- an asylum in Britain, the question whether the nitude, had the treaty never been formed. It casus foederis of the twenty-seventh article had is not punished by sending the offender out of occurred, so that his delivery ought to be dethe United States. The experience of this un- manded, would be a question of law, but no fortunate criminal, who was hung and gibbeted, man would say it was a question which ought evinced to him that the punishment of his to be decided in the courts. crime was of a much more serious nature than When, therefore, the gentleman from Pennmere banishment from the United States. sylvania has established, that in delivering up
The gentleman from Pennsylvania, and the Thomas Nash, points of law were decided by gentleman from Virginia, have both contended the President, he has established a position that this was a case proper for the decision of which in no degree whatever aids his arguthe courts, because points of law occurred, and ment. points of law must have been decided in its The case is in its nature a national demand determination.
made upon the nation. The parties are the The points of law which must have been two nations. They cannot come into court to decided, are stated by the gentleman from litigate their claims, nor can a court decide on Pennsylvania to be, first, a question whether them. Of consequence, the demand is not a the offence was committed within the British case for judicial cognizance. jurisdiction; and secondly, whether the crime The President is the sole organ of the nation charged was comprehended within the treaty. in its external relations, and its sole represent
It is true, sir, these points of law must have ative with foreign nations. Of consequence, occurred, and must have been decided : but it the demand of a foreign nation can only be by no means follows that they could only have made on him. been decided in court. A variety of legal! He possesses the whole executive power. questions must present themselves in the per- He holds and directs the force of the nation. formance of every part of executive duty, but Of consequence, any act to be performed by the these questions are not therefore to be decided force of the nation is to be performed through in court. Whether a patent for land shall | him. issue or not is always a question of law, but He is charged to execute the laws. A treaty not a question which must necessarily be car- is declared to be a law. He must then execute ried into court. The gentleman from Pennsyl- a treaty, where he, and he alone, possesses the vania seems to have permitted himself to have means of executing it. been misled by the misrepresentation of the The treaty, which is a law, enjoins the perconstitution 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 l the constitution, since the person is named who 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 department whose duty it is to understand premeans by which it is to be performed, the force cisely the state of the political intercourse and of the nation, are in the hands of this person. connection between the United States and forOught not this person to perform the object, eign nations, to understand the manner in which although the particular mode of using the the particular stipulation is explained and permeans has not been prescribed? Congress, un- formed by foreign nations, and to understand questionably, may prescribe the mode, and completely the state of the Union? Õongress may devolve on others the whole ex- This department, too, independent of judicial ecution of the contract; but, till this be done, aid, which may, perhaps, in some instances, be it seems the duty of the executive department called in, is furnished with a great law officer, to execute the contract by any means it pos- whose duty it is to understand and to advise sesses.
when the casus fæderis occurs. And if the The gentleman from Pennsylvania contends, President scould cause to be arrested under that, although this should be properly an ex- the treaty an individual who was so circumexecutive duty, yet it cannot be performed stanced as not to be properly the object of such until Congress shall direct the mode of per- an arrest, he may perhaps bring the question formance. He says, that, although the juris of the legality of his arrest before a judge by & diction of the courts is extended by the con- writ of habeas corpus. stitution to all cases of admiralty and maritime It is then demonstrated, that, according to jurisdiction, yet if the courts had been created the practice and according to the principles of without any express assignment of jurisdiction, the American government, the question whethey could not have taken cognizance of cases ther the nation has or has not bound itself to expressly allotted to them by the constitution. deliver up any individual, charged with having The executive, he says, can, no more than committed murder or forgery within the juriscourts, supply a legislative omission.
| diction of Britain, is a question the power to it is not admitted that, in the case stated, decide which rests alone with the executive courts could not have taken jurisdiction. The department. contrary is believed to be the correct opinion. It remains to inquire whether, in exercising And although the executive cannot supply a this power, and in performing the duty it entotal legislative omission, yet it is not admitted joins, the President has committed an unauor believed that there is such a total omission thorized and dangerous interference with judiin this case.
cial 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 in conformity with the treaty between the two who had committed murder within the juris- nations, has been already so ably argued by the diction of Britain, and sought an asylum within gentleman from Delaware, that nothing further the territory of the United States, should be can be added to that point. I will, therefore, delivered up by the United States, on the de- consider the case as if Nash, instead of having mand of His Britannic Majesty, and such evi- been committed for the purposes of the treaty, dence of his criminality, as would have justified had been committed for trial. Admitting even his commitment for trial, had the offence been this to have been the fact, the conclusions here committed; could the President, who is which have been drawn from it were by no bound to execute the laws, have justified the means warranted. refusal to deliver up the criminal, by saying Gentlemen have considered it as an offence that the legislature had totally omitted to pro- against judicial authority, and a violation of vide for the case ?
judicial rights, to withdraw from their sentence The executive is not only the constitutional a criminal against whom a prosecution had department, but seems to be the proper depart- been commenced. They have treated the subment to which the power in question may most ject as if it were the privilege of courts to conwisely and most safely be confided.
demn to death the guilty wretch arraigned at The department which is intrusted with the their bar, and that to intercept the judgment whole foreign intercourse of the nation, with was to violate the privilege. Nothing can be the negotiation of all its treaties, with the power more incorrect than this view of the case. It of demanding a reciprocal performance of the is not the privilege, it is the sad duty of courts article, which is accountable to the nation for to administer criminal judgment. It is a duty the violation of its engagements with foreign to be performed at the demand of the nation, nations, and for the consequences resulting and with which the nation has a right to disfrom such violation, seems the proper depart- pense. If judgment of death is to be proment to be intrusted with the execution of a nounced, it must be at the prosecution of the national contract like that under consideration. nation, and the nation may at will stop that
If, at any time, policy may temper the strict prosecution. In this respect, the President exexecution of the contract, where may that po- presses constitutionally the will of the nation; 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. The subject introduced by this observation, It is the exercise of an indubitable and a con- however, is so calculated to interest the public stitutional power. Had the President directed feelings, that I must be excused for stating my the judge at Charleston to decide for or against opinion on it. his own jurisdiction, to condemn or acquit the "The gentleman from Pennsylvania has said, prisoner, this would have been a dangerous in- that an impressed American seaman, who terference with judicial decisions, and ought to should commit homicide for the purpose of have been resisted. But no such direction has liberating himself from the vessel in which he been given, nor any such decision been required. was confined, ought not to be given up as a If the President determined that Thomas Nash murderer. In this, I concur entirely with the ought to have been delivered up to the British gentleman. I believe the opinion to be ungovernment for a murder committed on board questionably correct, as were the reasons that à British frigate, provided evidence of the fact gentleman has given in support of it. I have was adduced, it was a question which duty never heard any American avow & contrary obliged him to determine, and which he deter- sentiment, nor do I believe a contrary sentimined rightly. If, in consequence of this de- ment could find a place in the bosom of any termination, he arrested the proceedings of a American, I cannot pretend, and do not precourt on a national prosecution, he had a right tend to know the opinion of the executive on to arrest and to stop them, and the exercise of the subject, because I have never heard the this right was a necessary consequence of the opinions of that department; but I feel the determination of the principal question. In most perfect conviction, founded on the general conforming to this decision, the court has left conduct of the government, that it could never open the question of its jurisdiction. Should surrender an impressed American to the nation, another prosecution of the same sort be com- which, in making the impressment, had commenced, which should not be suspended but mitted a national injury. continued by the Executive, the case of Thomas This belief is, in no degree, shaken by the conNash would not bind as a precedent against duct of the executive in this particular case. the jurisdiction of the court. If it should even In my own mind, it is a sufficient defence of prove that, in the opinion of the executive, a the President from an imputation of this kind, murder committed on board a foreign fleet was that the fact of Thomas Nash being an impressnot within the jurisdiction of the court, it ed American, was obviously not contemplated would prove nothing more; and though this by him in the decision he made on the princiopinion might rightfully induce the executive ples of the case. Consequently, if a new cirto exercise its power over the prosecution, yet cumstance occurred, which would essentially if the prosecution was continued, it would have change the case decided by the President, the do influence with the court in deciding on its judge ought not to have acted under that decijurisdiction.
sion, but the new circumstance ought to have Taking the fact, then, even to be as the gen been stated. Satisfactory as this defence might tleman in support of the resolutions has stated appear, I shall not resort to it, because to some it, the fact cannot avail them.
it might seem a subterfuge. Í defend the conIt is to be remembered, too, that in the case duct of the President on other and still stronger stated to the President, the judge himself ap- 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 that tained, on this subject, the same opinion, and nation, and consequently within the twentyin 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 ministers, if satis1st. That the case of Thomas Nash, as stated factory evidence of the murder should be adto the President, was completely within the | duced. The sufficiency of the evidence was twenty-seventh article of the treaty between | submitted entirely to the judge. the United States of America 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 com3d. 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 on the patience of most certainly, not have been a murder. the House, in arguing what has appeared to me | The act of impressing an American is an act to be the material points growing out of the of lawless violence. The confinement on board resolutions, I regret the necessity of detaining la vessel, is a continuation of that violence, and