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 in evitable. It has 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 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. appearance of endeavoring to fit the constitution to his arguments, instead of adapting his arguments to the constitution. When the gentleman has proved that these are questions of law, and that they must have been decided by the President, he has not advanced a single step towards proving that they were improper for executive decision. The question whether vessels captured within three miles of the American coast, or by privateers fitted out in the American ports, were legally captured or not, and whether the American government was bound to restore them, if in its power, were questions of law, but they were questions of political law, proper to be decided, and they were decided by the executive, and not by the courts. The casus fæderis 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 foederis, 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. The gentleman is incorrect in every part of 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 fœderis 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 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 made upon the nation. The parties are the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance. The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him. 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 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 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. conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the, means has not been prescribed? Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the executive department to execute the contract by any means it 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 jurisdiction of the courts is extended by the constitution to all cases of admiralty and maritime jurisdiction, yet if the courts had been created without any express assignment of jurisdiction, they could not have taken cognizance of cases expressly allotted to them by the constitution. The executive, he says, can, no more than courts, supply a legislative omission. it is not admitted that, in the case stated, courts could not have taken jurisdiction. The contrary is believed to 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 wha had committed murder within the juriscon 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 pro vide 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 'litical 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 for'eign nations, to understand the manner in which the particular stipulation is explained and performed by foreign nations, and to understand completely the state of the Union? This department, too, independent of judicial aid, which may, perhaps, in some instances, be called in, is furnished with a great law officer, whose duty it is to understand and to advise when the casus 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. It is then demonstrated, that, according to the practice and according to the principles of the American government, the question whether the nation has or has not bound itself to deliver up any individual, charged with having committed murder or forgery within the jurisdiction of Britain, is a question the power to decide which rests alone with the executive department. It remains to inquire whether, in exercising this power, and in performing the duty it enjoins, the President has committed an unauthorized and dangerous interference with judicial decisions. That Thomas Nash was committed originally at the instance of the British Consul at Charleston, not for trial in the American Courts, but for the purpose of being delivered up to justice in conformity with the treaty between the two nations, has been already so ably argued by the gentleman from Delaware, that nothing further can be added to that point. 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. Gentlemen have considered it as an offence It against judicial authority, and a violation of judicial rights, to withdraw from their sentence a criminal against whom a prosecution had been commenced. They have treated the subject as if it were 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. 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 cpen 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. 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 dui.sion, 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 It is to be remembered, too, that in the case stated to the President, the judge himself ap-ground. pears 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 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 an additional estrage. Death committed within the United States, in realiq such violetre, would won have been murder, and the person giving the wound could not have been treated aa murderer. Tistas Nash was only to have born delivered up to justice on such evidence a. had the fact been committed within the United States, would have been sufficient to Lave induced his commitment and trial for murder. Of consequence, the decision of the Presilent was so expressed as to exclude the case of an impressed American liberating himself by homicide. Mr. Marshall now observed that he had already too long availed himself of the indulgence of the House, to venture farther on that indulgence by recapitulating or reinforcing the arguments which had already been urged. RUFUS KING. RUFUS KING, the eldest son of Richard King, an opulent and worthy merchant of Scarboro', Maine, was born in the year 1755. After due preparation, he was placed in the Byfield Academy, at Newbury, Massachusetts, where, under the severe discipline of the "classical Samuel Moody," he finished his elementary studies: and in 1773, entered Harvard College. In 1777, he received his first degree; with great reputation for his classical attainments, and more especially, for his extraordinary powers of oratory; an accomplishment in which he was particularly desirous to excel, and to the acquisition of which he applied himself with the highest enthusiasm. On leaving college he went to Newburyport, and commenced the study of law in the office of the celebrated Theophilus Parsons, with whom he remained until his admission to the bar in the year 1780. A short portion of this period of his life, however, was devoted to the cause of his country, as, in 1778, he took the field as a volunteer, was appointed an aid to General Sullivan, and acompanied that officer in his enterprise with Count D'Estaing, against the British at Rhode Island. Mr. King appeared at the bar in his first cause, under peculiar circumstances. His opponent was his great instructor, Parsons. Fully aware of the gigantic powers with which he was to contend, he called forth his best efforts, and evinced such talent, both as a lawyer and a speaker, that immediate and confident predictions were made of his future eminence. It is stated, that "the effect of his address upon the court, the bar, and the audience, was electrifying." Soon after this successful entrance upon professional life, he was elected to represent the town of Newburyport in the Legislature of Massachusetts, in which assembly he soon rose to distinction. In 1784, Congress recommended to the several States to grant to the general government, “full authority to regulate their commerce, both external and internal, and to impose such duties as might be necessary for that purpose." A debate arose in the legislature, in which Mr. King supported the grant, and finally prevailed. During the same year, 1784, he was elected, by an almost unanimous vote of the legislature, a delegate to the Continental Congress, from the Commonwealth of Massachusetts; and on the sixth of December, joined that body, then in session at Trenton, New Jersey. In 1785 and 1786, he was reëlected to Congress, and took an active and important part in its transactions. On the sixteenth of March, 1785, he submitted to Congress and advocated the passage of the following proposition: "That there shall be neither slavery nor involuntary servitude in any of the States, described in the resolve of Congress of the twenty-third of April, 1784, otherwise than in punishment of crimes, whereof the party shall have been personally guilty; and that this regulation shall be an article of compact, and remain a fundamental principle of the constitutions between the thirteen original States, and each of the States described in the said resolve of the twenty-third of April, 1784." By this resolution, slavery was prohibited in the territory northwest of the Ohio.* In 1787, Mr. King was a member of the Convention held in Philadelphia, for the purpose * Journals of the American Congress. Edition of 1823, pp. 379, 481. VOL. II.-3 |