escaped punishment. It takes away the protec- | the persons to have been within the peace, and tion of a foreign commission from an American murder to have been committed against the citizen, who, on the high seas, robs his country-peace of the United States. These are necesmen. This is no exception from any preceding part of the law, because there is no part which relates to the conduct of vessels commissioned by a foreign power: it only proves that, in the opinion of the legislature, the penalties of the act could not, without this express provision, have been incurred by a citizen holding a foreign commission.

It is then most certain that the act of Congress does not comprehend the case of a murder committed on board a foreign ship of war.

The gentleman from New York has cited 2 Woodeson, 428, to show that the courts of England extend their jurisdiction to piracies committed by the subjects of foreign nations.

This has not been doubted. The case from Woodeson is a case of robberies committed on the high seas by a vessel without authority. There are ordinary acts of piracy which, as has been already stated, being offences against all nations, are punishable by all. The case from 2 Woodeson, and the note cited from the same book by the gentleman from Delaware, are strong authorities against the doctrines contended for by the friends of the resolutions.

It has also been contended that the question of jurisdiction was decided at Trenton, by receiving indictments against persons there arraigned for the same offence, and by retaining them for trial after the return of the habeas corpus.

Every person in the slightest degree acquainted with judicial proceedings knows that an indictment is no evidence of jurisdiction; and that in criminal cases, the question of jurisdiction will seldom be made but by arrest of judgment after conviction.

The proceedings after the return of the habeas corpus only prove that the case was not such a case as to induce the judge immediately to decide against his jurisdiction. The question was not free from doubt, and therefore might very properly be postponed until its decision should become necessary.

It has been argued by the gentleman from New York, that the form of the indictment is, itself, evidence of a power in the court to try the case. Every word of that indictment, said the gentleman, gives the lie to a denial of the jurisdiction of the court.

sary averments, and, to give the court jurisdiction, the fact ought to have accorded with them. But who will say that the crew of a British frigate on the high seas are within the peace of the United States, or a murder committed on board such a frigate against the peace of any other than the British government?

It is then demonstrated that the murder with which Thomas Nash was charged, was not committed within the jurisdiction of the United States, and, consequently, that the case stated was completely within the letter, and the spirit of the twenty-seventh article of the treaty between the two nations. If the necessary evidence was produced, he ought to have been delivered up to justice. It was an act to which the American nation was bound by a most solemn compact. To have tried him for the murder would have been mere mockery. To have condemned and executed him, the court having no jurisdiction, would have been murder; to have acquitted and discharged him would have been a breach of faith, and a violation of national duty.

But, it has been contended, that although Thomas Nash ought to have been delivered up to the British minister, on the requisition made by him in the name of his government, yet the interference of the President was improper. This leads to my second proposition, which is:

That the case was a case for executive and not judicial decision. I admit implicitly the division_of_powers, stated by the gentleman from New York, and that it is the duty of each department to resist the encroachments of the others.

This being established, the inquiry is to what department is the power in question allotted?

The gentleman from New York has relied on the second section of the third article of the constitution, which enumerates the cases to which the judicial power of the United States extends, as expressly including that now under consideration. Before I examine that section, it will not be improper to notice a very material misstatement of it made in the resolutions, offered by the gentleman from New York. By the constitution, the judicial power of the United States is extended to all cases in law It would be assuming a very extraordinary and equity, arising under the constitution, laws principle indeed, to say that words inserted in and treaties of the United States; but the resoan indictment for the express purpose of as-lutions declare that judicial power to extend to suming the jurisdiction of a court, should be admitted to prove that jurisdiction. The question certainly depends on the nature of the fact, and not on the description of the fact. But as an indictment must necessarily contain formal words in order to be supported, and as forms often denote what a case must substantially be to authorize a court to take cognizance of it, some words in the indictments at Trenton ought to be noticed. The indictments charge

all questions arising under the constitution, treaties and laws of the United States. The difference between the constitution and the resolutions is material and apparent. A case in law or equity is a term well understood, and of limited signification. It is a controversy between parties which had taken a shape for judicial decision. If the judicial power extends to every question under the constitution, it will involve almost every subject proper for legisla

tive discussion and decision; if to every question under the laws and treaties of the United States, it will involve almost every subject on which the executive can act. The division of power which the gentleman has stated could exist no longer, and the other departments would be swallowed up by the judiciary. But it is apparent that the resolutions have essentially misrepresented the constitution. I do not charge the gentleman from New York with intentional misrepresentation; I will not attribute to him such an artifice in any case, much less in a case where detection is so easy, and so certain. Yet this substantial departure from the constitution, in resolutions affecting substantially to unite it, is not less worthy of remark for being unintentional. It manifests the course of reasoning by which the gentleman has himself been misled, and his judgment betrayed into the opinions those resolutions expressed. By extending the judicial power to all cases in law and equity, the constitution has never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.

gress to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; together with the act of Congress, declaring the punishment of those offences; as transferring the whole subject to the courts. But that clause can never be construed to make to the government a grant of power, which the people making it do not themselves possess. It has already been shown that the people of the United States have no jurisdiction over offences committed on board a foreign ship against a foreign nation. Of consequence, in fraining a government for themselves, they cannot have passed this jurisdiction to that government. The law, therefore, cannot act upon the case. But this clause of the constitution cannot be considered, and need not be considered, as affecting acts which are piracy under the law of nations. As the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction, and piracy under the law of nations is of admiralty and maritime jurisdiction, punishable by every nation, the judicial power of the United States of course extends to it. On this principle the courts of admiralty under the confederation took cognizance of piracy, although there was no express power in Congress to define and punish the offence.

But the extension of the judicial power of the United States to all cases of admiralty and maritime jurisdiction, must necessarily be understood with some limitation. All cases of admiralty and maritime jurisdiction which, from their nature, are triable in the United States, are submitted to the jurisdiction of the courts of the United States.

There are cases of piracy by the law of nations, and cases within the legislative jurisdiction of the nation; the people of America possess no other power over the subject, and can consequently transfer no other to their courts; and it has already been proved that a murder committed on board a foreign ship-of-war is not comprehended within this description.

A case in law or equity proper for judicial decision may arise under a treaty, where the rights of individuals acquired or secured by a treaty are to be asserted or defended in court. As under the fourth or sixth article of the treaty of peace with Great Britain, or under those articles of our late treaties with France, Prussia and other nations, which secure to the subjects of those nations their property within the United States: or, as would be an article, which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the United States. But the judicial power cannot extend to political com- The consular convention with France, has pacts: as the establishment of the boundary also been relied on, as proving the act of deÎine between the American and British domin-livering up an individual to a foreign power to ions: the case of the late guarantee in our treaty with France, or the case of the delivery of a murderer under the twenty-seventh article of our present treaty with Britain.

The gentleman from New York has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign government? Permit me, but not triumphantly, to retort the question. By what authority can any court render such a judgment? What power does a court possess to seize any individual and determine that he shall be adjudged by a foreign tribunal? Surely our courts possess no such power, yet they must possess it, if this article of the treaty is to be executed by the courts.

Gentlemen have cited and relied on that clause in the constitution, which enables Con

be in its nature judicial and not executive.

The ninth article of that convention authorizes the consuls and vice-consuls of either nation to cause to be arrested all deserters from their vessels, "for which purpose the said consuls and vice-consuls shall address themselves to the courts, judges, and officers, competent."

This article of the convention does not, like the 27th article of the treaty with Britain, stipulate a national act, to be performed on the demand of a nation; it only authorizes a foreign minister to cause an act to be done, and prescribes the course he is to pursue. The contract itself is, that the act shall be performed by the agency of the foreign consul, through the medium of the courts; but this affords no evidence that a contract of a very different nature is tc be performed in the same manner.

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 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

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 depart-decide upon the case, if, instead of being carried ment to perform an act stipulated by treaty, until the legislative authority shall direct its performance.

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 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 such prizes as shall be hereafter brought within their ports by any of the said privateers."

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 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 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 and punishing him. A provision for the vent the injuries consequent on long delay."

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

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

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 ac-forces of the United States. Had such a concording 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

struction 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 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 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 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.