27 F. Cas. 825 | D.S.C. | 1799
The question on which I am now to give a decision, is grounded on a habeas corpus to bring the prisoner before me; and on motion by counsel on behalf of the consul of his Britannic majesty, the officer authorized by treaty to make the requisition, that the prisoner, charged with murder committed within the jurisdiction of Great Britain, shall be delivered up to justice, in virtue of the 27th article of the treaty of amity and commerce between the United States and Great Britain, signed the 19th of November, 1794.
Objections have been made by counsel on behalf of the prisoner to this motion, on a variety of grounds; and this case has been very fully argued on both sides. Two papers have been produced on behalf of the prisoner: one. a certificate from a notary public at New York, dated 20th of May, 1795, that Jonathan Bobbins, a mariner, had that day deposed on oath before him, that he, the said Jonathan Bobbins, was a citizen of the United States, and a native of Connecticut; the other is an affidavit of the prisoner, made in open court, that he is a native of Connecticut: and that about two years ago he was pressed from the brig Betsy of New York, on board the British frigate Her-mione, and was detained there against his will, until the vessel was captured by the crew, and carried into a Spanish port, and that he gave no assistance. The motion before me has been opposed on a variety of grounds. It is contended, that.it is a question of magnitude whether a citizen of the United States shall be tried by a jury of his own country, or in a foreign one: that the 27th article of the treaty, on which this motion is founded, is contrary to the constitution of the United States, and is therefore void; that the treaty can only relate to foreigners: that the fact in this case being committed on the high seas, the courts of the United States have competent jurisdiction: that a grand jury ought to make inquest, before a party shall be sent away for trial. It was also contended that this would strike at the root of the liberties of the people: that the constitution secured the right of trial by jury to the citizens; and that treaties and laws altering that, were of subordinate authority; and of course void: that the treaty making power may be abused; and it could never give authority to seize a person and send him away for trial. It was also contended, that this is not an offence within the contemplation of the treaty: the word “jurisdiction,” means “territorial jurisdiction”; and that the act must be confined to offences committed within the territory of either; that the sending a person in confine
These were the points on which the objections to this motion were argued. In the course of the arguments, warm and pathetic appeals to the passions were made on some of the old grounds of opposition to the treaty, which I endeavoured to check, because, ' as this treaty has been ratified agreeably to the express provisions of the constitution, and is therein declared to be the supreme law of the land, and I am religiously and solemnly bound by the oath I have taken to administer justice according to the constitution and laws, it is not in my power, nor is it my inclination, ever to deviate therefrom. If we attend to the constitution, and the amendments which are now part of it, we shall find, that all the provisions there made respecting criminal prosecutions, and trials for crimes by a jury, are expressly limited to crimes committed within a state or district of the United States. Indeed, reason and common sense point out that it should be so: for, what control can the laws of one nation have over offences committed in the territories of another? It must be remembered, also, that in the 27th article of the amendments, where it is pro-vided that no person shall be held to answer for a capital offence, unless on a presentment by a grand jury, an exception is made to cases arising in the land or sea service, or even in the militia when in actual service, in time of war or public danger. This shows unequivocally, that trials by jury may be dispensed with, even for crimes committed within the United States; and those observations are at once an answer to all the arguments founded on the right to trials by jury, they being expressly limited to crimes committed within the United States, and even then with some exceptions.
The objections made to the treaty’s being contrary to the constitution, have been so often and so fully argued and refuted, that I was in hopes no time would have been occupied on that subject, more especially as that treaty has been recognized by the legislature of the United States and is now in full operation. It is remarkable, that in the midst of all the warmth against the treaty, at its first publication, the 27th article was one of the few that was never excepted to; and I believe this is the first instance in which it had been held up as dangerous to liberty. The crime of murder is justly rep-robated in all countries; and in commercial ones the crime of forgery is so dangerous to trade and commerce, that provision has been made in various treaties for delivering up fugitives from justice for these of-fences; and many instances may be produced- of criminals sent back to be tried where the fact was perpetrated. What says the 27th article of the treaty now under consideration? In the first place it is founded on reciprocity: in the next, it is general to-all persons, who, being charged with murder or forgery, whether citizens, subjects, or foreigners. It is for the furtherance of justice, because the culprits would otherwise escape punishment; no prosecution would lie against them in a foreign country; and if it did, it would be difficult to procure evidence -to convict or acquit. This clause is founded on the same principle with that part of the constitution which declares, that the trial for a crime shall be held in the state where it shall be committed; and the act of congress to prevent fugitives from justice escaping punishment, declares, that they shall be delivered up when demanded. to be tried where they committed the offeDee, either on a bill found, or an affidavit charging them with the offence. The principle, then, being the same, and the one being expressly founded on the constitution and laws of the United States, no solid objection can lie against this clause of the treaty. Nor does it make any difference, whether the offence is committed by a citizen, or another person. This will obviate the objection made by the counsel on that head. And 1 cannot but take this occasion to observe, that the two papers produced by the prisoner, are only affidavits of his own, or a certificate founded on an affidavit, which are not evidence; and if they were, prove little or nothing. It is somewhat remarkable, that a man of the name of Jonathan Robbins, with the paper produced in his possession, should continue on board a British frigate for a length of time, under another name, and acting as a warrant officer, which impressed men are not likely to-be entrusted with, and that he should aft-erwards take the name of Nathan Robbins, and lay in jail here five or six months, without the circumstance being made known until now.
All the arguments against delivering up the prisoner seem to imply that he was to be punished without a trial; the contrary of which is the fact: we know that no man can be punished by the laws of Great Britain without a trial. If he is innocent, he will be acquitted; if otherwise, he must suffer. This would be the case here, under similar circumstances.
The objection most relied on against this motion, is to the word jurisdiction, in the 27th article of the treaty, and that the crime being committed on the high seas, the courts of the United States have a concurrent jurisdiction. There is no doubt that the circuit courts of the United States have a concurrent jurisdiction, and this arises under the general law of nations; and if the 27th clause of the treaty in question had not expressly declared the right to demand, and the obligation to deliver over, the prisoner
When application was first made, I thought this a matter for the executive interference, because the act of congress respecting fugitives from justice, from one state to another, refers it altogether to the executive of the states; but as the law and the treaty are silent upon the subject, recurrence must be had to the general powers vested in the judiciary by law and the constitution, the 3d article of which declares the judicial power shall extend to treaties, by express words. The judiciary have in two instances in this state, where no provisions were expressly stipulated, granted injunctions to suspend the sale of prizes under existing treaties. If it were otherwise, there would be a failure of justice.
I have carefully reviewed the arguments advanced by the counsel for the prisoner. I have looked into the constitution, the treaty, the laws, and the cases quoted: and upon a full investigation of them all, I am of opinion, that from the affidavits filed with the clerk of the court, there is sufficient evidence of criminality to justify the apprehension and commitment of the prisoner for trial, for murder committed on board a ship of war belonging to his Britannic majesty, on the high seas: that requisition having been made by the British consul, the officer authorized to make the same, in virtue of the 27th article of the treaty of amity and commerce between the United States and Great Britain, I am bound by the express words of that clause of the treaty, to deliver him up to justice. And I do therefore order and command the marshal, in whose cus-t jdy the prisoner now is, to deliver the body of the said Nathan Robbins, alias Thomas Nash, to the British consul, or such person or persons as he shall appoint to receive him.
The judgment being pronounced, the court was immediately adjourned; the irons were replaced on the prisoner, and he was delivered over by the constables, to a detachment of federal troops, who had before been placed under arms opposite the court house, and had continued there during the sitting of the court. The troops immediately delivered up the prisoner to Lieut. Jump, of his Britannic majesty’s sloop Sprightly, then lying in this harbour, and which sailed with the prisoner on Saturday morning for Jamaica.
NOTE.
The Examiner, the organ of the Virginia Republicans, began by a series of attacks, said to emanate from Mr. Madison, but which unfortunately are not preserved. This was answered in the Virginia Federalist by Mr. Marshall, as follows:
“I observe in a late paper of the Examiner, several strictures on the case of Robbins, who was delivered to the British consul at Charleston, under the 27th article of the treaty of amity and commerce between Great Britain and America, censuring the measure in general, but reprobating the conduct of the president in a particular manner. These strictures, calculated to exasperate the public mind, would probably lose their effect upon a fair explanation of the nature of the business, and therefore I have thought it worth while, for the sake of removing unjust impressions, and satisfying the minds of those who really wish for information relative to the necessary mode of proceeding in cases of that kind, to endeavour to make a just representation of the matter, as far as I am able to understand the case from the mutilated publications which we have seen of it. As to the opinion of the learned judge upon the case, I shall not enter into any arguments in support of it, because they would be useless and unnecessary, as the reasoning contained in his own excellent speech upon the subject is perfectly correct, and must be convincing to every unprejudiced mind. I shall therefore confine myself to that part of the case which respects the president’s letter only; which I am induced to do, not because I think it needs any justification with candid men, who know the nature of such proceedings, but because I wish to prevent the effects which are intended to be produced from it upon the minds of those who do not possess the' kind of information necessary to enable them to judge impartially on the subject. The case, from the publication which I have seen, I suppose to-be this. The British government, having discovered that Robbins was in Charleston, applied to the judge for a warrant to secure him until application could be made to government for him. The warrant was granted, and an application, with the evidences of the charge, were laid before the president, who, being satisfied that it was a case within the treaty, directed the judge, as he was arrested under his warrant, to deliver him up, and the single question is, whether this proceeding in the present case was regular. By the treaty of amity made when the two nations neither did nor could contemplate this, or the case of any other individual, it is mutually stipulated that fugitives from justice who have been guilty of murder or forgery in one of the nations, and have taken shelter in the territories of the other, shall be delivered up to the injured government. • Those stipulations are reciprocal, and America, whenever a case shall happen, will have the same right to demand a fugitive of Great Britain that the latter had to demand Robbins of the United States. Nor can either nation refuse, for the words are positive. They are: ‘It is further agreed, that his majesty and the United States, on mutual requisitions by their respective ministers or officers authorized to make the same, will deliver up to justice all persons who, being charged of murder or forgery committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other, provided that this shall only be done on such evidence of criminality as, according to the laws of the place where the fugitive or persons charged shall be found, would justify his apprehension and commitment for trial, if the offence had there been committed. The expense of such apprehension and delivery shall be borne and defrayed by those who make the requisition and receive
“The government, as we have already seen, was bound by engagement to cause delivery to be made; and therefore the president was under the necessity of taking some order in the business which might produce the object of the application. For, having been informed that the man was under confinement, upon the charge on which the application was made, until the determination of government upon the subject could be known, he was bound to give some directions in the business, so that the prisoner might either be liberated or delivered up, and those directions could only be given in writing. If the president had said to the British ambassador: ‘You must apply to the judge under whose warrant he was arrested, and he will deliver the prisoner to you,’ the obvious answer would have been, ‘Sir, 1 cannot do so without your warrant. If I apply to your judge, I shall certainly be told again as I was told before, that he cannot interfere in a business of state without the knowledge of government; and it will be in vain for me to tell him that I have your instructions upon the subject, unless I am able to produce some evidence of them.’ It follows, therefore, that the president was bound to give some written instructions upon the subject; because no other would, or ought to have been credited by the judge.
“The only question then is, whether the letter of the secretary of state contained the proper instructions or not? If 1 am right in my position that the application, in all such cases, should be made to the executive, and that the executive has a right to decide whether the requisition should be complied with or not; it follows necessarily, that when information was given to the judge that application had been made, it ought to have been accompanied with some expression of the will of government upon the subject. For it would have been ridiculous in the president to have ordered • a letter to be written to the judge, informing him that such an application had been made, without informing him also what government had resolved to do in the business; because that would have left the judge exactly where he was; and he would have been at liberty to have considered it as a mere private letter from one gentleman to another, and not as an official document, on which he was bound to act. So that, if under that impression he had resolved to have taken no steps in the business, he not only would have stood excused himself, but the British government would have had just cause to complain that our conduct was illusory, and that the stipulations of that treaty were evaded. But, if it be admitted that any declaration of the president was necessary upon the subject, more eligible terms than those used by the secretary of state, even according to the garbled publication which we have of them, could not have been chosen. For they are the usual phrases all over the United States, from the governor down to the county court magistrate. There is not a mandate of any kind in use amongst us, which does not contain the word ‘require’; and it will surely bo ndmilted that the word ‘advise’ is at least as harmless as the words ‘command’ and ‘at your peril.’ which are to be found in the warrant of every superior to his inferior officer throughout the United States. Let me now, then, ask any candid man. if the inference drawn by the Examiner from this letter, namely, that the president had endeavoured to influence the opinion of a judge, in a matter depending before him. be a correct one? On the contrary, it is manifest from what has been said, that the matter never was, nor could be regularly before the judge, until he had received this letter, which was the ground and foundation on which he was to proceed. Until then he had no authority to act definitely upon the question; and so the judge evidently appears to have considered it himself. For
“Perhaps it will be said that the judge himself has denied the authority of the executive; and there is a passage in his speech which looks that way. But this is a part of the opinion of the judge which seems liable to be questioned; and I strongly suspect it is not truly stated in the public prints, or else it comes to this, that the judge was of opinion that everything relative to treaties was to be transacted by the judges and not by the executive; a position which he certainly did not mean to maintain, and, therefore, the passage alluded to ought to be understood with some qualification.
“Perhaps the following solution may reconcile his opinion with the doctrine I have been contending for: The judge probably meant to say, that he once thought it a question which exclusively belonged to the executive, and therefore. that he, as a judge, could not in any manner be required to aid in the execution of the treaty. But finding, by recurrence to the constitution, that the judicial power extended to treaties, he was then satisfied that the judges might be called on, where eireumstanees rendered it proper, to take the necessary steps. In order to have the treaty carried into effect, as by issuing a warrant to secure the fugitive, until the determination of government could be known, and after that was promulgated, giving the necessary orders for carrying the determination into effect. With this qualification, the opinion of the judge was correct, and I therefore incline to think that he ought to be so understood in the passage under consideration. Upon the whole, the president appears to have done no more than his duty. For suppose it had been said that the British government had applied to the president for a fugitive from justice under the treaty, and that the latter, instead of ordering him to be delivered up. had refused or neglected to do it, without assigning any reason for it. How could the president have justified his conduct in that ease? And might it not then have been said with propriety, that he had neglected his duty and omitted to execute one of the supreme laws of the land, which he was bound to observe and have carried into effect? In short, if some men would use but half the industry in examining into the real motives of the president’s conduct upon any occasion, that they do in finding out reasons to reproach him, they would soon be convinced that, in no instance of his administration, has he either encroached upon the duty of others, or omitted to perform his own.” 1 Hall. Jour. Jur. 28.
The opposition view was fully set forth in the following letter, written, as afterwards appeared, by Mr. Charles Pinckney, then a senator from South Carolina, which first was published in the newspapers, and subsequently was circulated, with one or two others, in a pamphlet, signed—“A South Carolina Planter”:
“To the Citizens of the United States: As congress must by law provide.- at their next session, for any similar cases which may occur under the British treaty, and as it is of general importance to the citizens of the United States, the following examination of the case of Jonathan Robbins, lately decided in the district court of South Carolina, is with deference submitted to their consideration: Fellow Citizens—As I believe you have not been much troubled with my remarks on any subject, 1 hope you will more readily excuse the favour I now ask, in requesting your attention to the present. I am induced to make them, because the question is of very great public consequence, and involves the dearest and most valuable rights of every man in the United States. It reaches all situations, as well the elevated and opulent as the most indigent. It affects the knowledge and independence of our judicials in the most important manner; and as I know it has excited the sensibility of the people, and must be so far made the subject of inquiry in congress as to enable them to provide for similar cases; I have supposed some examination of it may be necessary, in that spirit of deference and delicacy in which all such inquiries should be conducted. I shall not go into a definition of the principles of a free government, and the blessings its citizens ought to expect; because few of our own, even amongst the most illiterate, are ignorant of the nature of a representative government, the right of suffrage, and the inestimable privilege of the trial by jury, in all cases in which their characters, lives or property are concerned. To a people so informed, it is scarcely necessary to remark, thatto men of feeling the value of character, of honorable fame, is dearer than life or property, or even the most tender connections; that to all men, whether of the nicest honour or otherwise, the love of life is dearer than that of property, and that they would readily sacrifice the one to preserve the other. Hence it follows, that those privileges which guard the character and lives of our citizens are viewed with a more jealous eye, and will be asserted with more firmness and promptitude, than even those which protect their properties, vigilant as they are with respect to these. A number of our citizens, therefore, believing that the inestimable privileges secured to them by the constitution and laws of the United States, have been affected in the case of Jonathan Robbins, that it is one which may if established as a precedent, reach some valuable inhabitants of this country, and to the intent that these privileges should be more carefully guarded by a positive law in future, the following remarks are submitted, with a view to bring this business more fully before the public than it has hitherto been. The following is the statement of the case, with the accompanying affidavits: It appears, however, by the result, that these affidavits, and the question whether the prisoner was an American, and an impressed seaman or not, were, in the opinion of the court, altogether immaterial: the court would have felt itself bound to deliver up any respectable citizen of the United States, if claimed under the circumstances of the prisoner. It appears by the preceding statement, that the judge, under the circumstances of this ease, would feel himself obliged to deliver up any respectable citizen of the ‘United States.’ I do not mention this because he used the words ‘respectable citizen’; but I do it to show, that this is a question which seriously concerns every part of the community, and that no citizen whose business may oblige him to go to other countries, is hereafter safe from such demands. It will not depend upon him to say he is not a mariner, or to show proofs or certificates to the contrary. It will depend upon the force with which he is attacked, and the temper or violence of the officer who directs it. Instances, it is said, have lately occurred where not only the seamen but the passengers have been impressed, who, although declaring they were not seamen, were still impressed as such, and obliged to perform their duties. No production ofipapers, no entreaties availed them: they were compelled to submit. Had these men been enterprising, or an opportunity offered, and they had possessed themselves of their oppressors, and brought them into port: or had they, in the attempt to regain their freedom, been obliged to destroy them, while the world would have applauded the act, the judge must,
“I now proceed to examine the case and the nature of the evidence, on which Mr. Bee determined to deliver Jonathan Robbins to the demand of the British minister. I believe it is the first instance which has occurred, of a demand under the British treaty in the United States; certainly, in this state. The law respecting the delivery of fugitives from justice was silent on the delivery of fugitives to foreign powers, therefore the judge conceived himself not only authorized but bound to interfere. By his own statement it appears- to have been entirely a new case, in which I should suppose he had considerable discretion, and was not bound by any particular legislative act to deliver on a mere affidavit or any ‘trivial surmise or hearsay evidence.’ It was his duty to have maturely considered what were the legal import and meaning of the words, ‘charged with murder and forgery,’ and how far, according to the laws of this country, there was such evidence of criminality as would justify the sending any man, claiming to be a citizen; and not disproved as such, from his country, to be tried by a foreign tribunal, and most probably by a court martial. The judge’s auditors must have been surprised when they heard him say ‘that no man can be punished by the laws of G-reat Britain without a trial; if he is innocent, he will be acquitted; if guilty, he must be punished.’ This observation was by no means applicable to the present case: the true question before the court was, whether Jonathan Robbins, producing a notarial certificate of being a citizen of the United States, and asserting that he was impressed by violence into the British service, was, from the nature of the affidavits before him, to be tom from his country and connexions, and deprived of all the rights of citizenship, and sent to be tried by a foreign tribunal, acting without a jury, in the most summary manner, and by martial law. I do not pretend to equal legal knowledge with the judge: but I have sometimes attended to points of this kind; and as far as I am able to form, am clearly of opinion that the prisoner, not having been disproved to be a citizen of the United States, there was not such evidence before the court as justified the judge in giving so important an order, as to surrender him to the demand of the British consul. This I will endeavour to prove from the examination of the affidavits, and the nature of the testimony required by our laws, as sufficient even to justify the putting a citizen upon his trial in this country, without adding to it the inexpressible disgrace and danger of sending him to be tried by a foreign tribunal. The first affidavit is William Portlock. on which I suppose the judge could not have rested at all: he appears from his age, and the statement in the affidavit, to have been a sailor lad as little known in this country as Robbins himself, and to have been so illiterate as not to have been able to write his name. This lad says, he heard a person who answered to the name of Nathan Robbins, declare he was boatswain’s mate on board the Hermoine, when she was carried into the port of ‘Gavilla;’ and that sometimes when he was drunk, he would mention the Hermoine. clench his fist, and say ‘Bad luck to her.’. Prom this statement it results that this Portlock was an illiterate sailor lad, so ignorant as not to know the name of the port the frigate was carried into. It dees not appear that he was shown the prisoner, or that he could swear that Jonathan Robbins was the person he knew on board the Tanner’s Delight; he avowedly knew nothing of himself. He does not say the person he spoke of confessed to him that he was concerned in the murder or piracy charged on him. From the youth, ignorance and situation of Portlock; from the vague and uncertain account he gave, I must still be of the opinion that the judge could not have rested at all on his testimony; he knew, that even if Portlock had sworn positively to the identity of Robbins, and the latter had when sober made any confession of guilt to him, that it was the duty of a judge not to have attended to it. Any confession of a criminal must be made in a particular manner, before magistrates, or in open court, to operate to conviction. An elegant writer, treating on this subject, says, Í3?he confession of a criminal, when taken even before a magistrate, can rarely be turned against him, without obviating the end for which he must be supposed to have made it. Besides, we have known instances of murders avowed, which were never committed; of things stolen, which had never quitted the possession of the owner.’
“The evidence of words alleged to have been spoken by the person accused, and connected with the criminality of the charge, ought also to be received with great distrust. Such words are either spoken in the zeal of unsuspicious confidence, and cannot be repeated without a breach of private faith, which detracts much from the credibility of the witness; or, in the unguarded hours of boasting dissipation, in which case they are not unlikely to be false in themselves, and very likely to be falsely repeated. In every situation, therefore, in which Portlock can be received as a witness, or the testimony he gave examined, it must at once be seen, that it was not such as a grand jury could have found a bill on, or such as will be considered sufficient to justify the delivery the judge has ordered. It must, therefore, have been altogether on the single testimony of Lieutenant Forbes he ordered it, and this remains to be examined. The whole of Lieutenant Forbes’ examination says, that a man confined in the jail of this district, who calls himself Robbins, but whose real name he believes to be Thomas Nash, was a seaman for a' certain time on board the Hermione; that after he left the Hermione, she was seized by the crew and carried into an enemy’s port; and that he has heard from the depositions of others in courts martial.' that the man whom he believes .to be named Thomas Nash, was a principal in the commission of the said acts of piracy and murder, &c. From this account, Mr. Forbes has confessed that he knows nothing of himself—that he was not sure what the
“This being the state of the evidence before the judge, two important questions arise: (1) Whether the judge was strictly authorized, and if there was a doubt, whether he ought to have decided alone upon this question; and, (2). whether in deciding lie had any, and what discretion, as to the nature of the evidence to be required, and whether his decision was such as the security of the personal privileges of our citizens, or the policy of the United States demanded.
“To the first question—It appears that, from laws of congress respecting the delivery of fugitives from justice from one state to another being silent, the judge was of opinion, on the application being first made to him. that it was a matter for executive interference; but that upon reconsideration, as the law and the treaty were silent, he was under the necessity of deciding. I think a further view of this subject must have, by this time, convinced him that he was mistaken, and that no possible construction that he can give to the 3d article of the constitution, can justify the opinion he formed of his having a right to decide on this case. The article respecting the judicial, after vesting in congress the right to establish superior and inferior tribunals, defines the important powers they shall exercise, but leaves the boundaries of each to be ascertained by congress. They have accordingly detailed the duties and fixed the limits of the supreme, circuit, and district courts in a manner so clear, that it is astonishing a doubt should have for a moment arisen as to the court really having jurisdiction to decide this question. The district courts have no right to decide on any crime, where the punishment is to exceed thirty stripes, one hundred dollars fine, and six months imprisonment: in any case exceeding these, and particularly for capital offences, however the judge, like any other magistrate, may, on proper testimony, commit for trial, here he has no right to decide: this authority is given to the circuit court. Had, therefore, Robbins been committed for trial in this state, could Mr. Bee have tried him? Certainly not. He must have remained to be tried by the circuit court. With what authority, therefore, could he decide upon a question which not only went to divest the prisoner of his right of citizenship, banish him from his country, and deprive him of the trial by jury, but also to dispossess the circuit court of a right to decide upon as new, delicate, and important a subject as ever came before them: one which I hoped would have been reserved for much more ample discussion and consideration, and in which I should have supposed the public would have been pleased to hear the opinions of all the most experienced counsel at the bar, and to have seen decided by the supreme court. It is no answer to say that the 27th article of the treaty speaks of commitment, because the latter clause qualifies it, and makes this commitment depend upon the evidence of criminality according to our laws; and there is surely an astonishing difference between a mere commitment for trial, and a delivery over to a foreign tribunal. Nor is it more just to say that the law of congress respecting fugitives from justice in the different states makes them deliverable on a bill found or by an affidavit, because they are only removed from one state to another, where the same laws, same right of jury and same forms exist: and what is equal to all, the invaluable right of habeas corpus, where a prisoner, improperly committed, can, after delivery and removal, demand to be brought before a judge, and have ihe reasons of his confinement examined. But where is the habeas corpus that can, in this situation, reach an unfortunate American? However slight or unfounded the accusation against him, or erroneous the opinion of a single judge who delivered him may be. when once delivered he is forever deprived of this invaluable privilege. The moment the order is given, he is hurried in chains on board an armed cutter, from whence, on his arrival in a distant and foreign port, he is immediately transferred to another vessel, on whose deck, after a summary military trial, he is doomed to meet his fate.
“I will pause here, and ask you, my countrymen. if there is no difference between this and an ordinary commitment by a magistrate for trial here? Your own good sense, and the security you must wish to the rights of your fellow-citizens and yourselves, will best dictate the answer you should give.
“There is another important reason why the judge ought not. upon this occasion, singly to have decided. I think if it had occurred to him he certainly would have postponed the decision until the meeting of the circuit court. It is this: That however all nations may have agreed upon the propriety of delivering up fugitives from justice, in the case of forgery, yet that in times of war, and particularly in revolutions, when different nations hold such opposite opinions upon what are piracy or murder,- and what justifiable resistance to tyranny and oppression, whqn it is so extremely difficult, and requires all the acuteness, and all the knowledge and experience of the ablest judges to draw the line between them, most certainly in this country our judges ought not to have decided in cases that may hereafter be quoted as precedents, without , the utmost caution and deliberation. They should have reflected, that in all trials where there was a claim of birthright or citizenship on the part of the accused, and where there was not the fullest and most positive proof of his criminality, that it was safest to try him here.i In this instance they ought certainly to have
“To the second question it has been already observed, that this was a new case, in which congress had not legislated, and the more, that if the judge thought proper to assume the power of deciding, he was bound by no particular act of restriction, but at liberty to declare the nature of the evidence on which, in his opinion, so important a decision should have been made. Supposing him, as the district judge, to have been at all authorized to decide, his discretionary power certainly would have extended to this; and the point then for consideration is. that having the power to determine on what evidence so important an order should be founded, what ought to have been his conduct, and what the nature of the proof he should have required? My own opinion. decidedly is, that, he should at least have required such proofs, as a grand jury would have thought sufficient to find a bill. Perhaps he ought to have gone further, and before he consented to his removal into a foreign country and military tribunal, he should have demanded complete proof of his guilt, such as would have induced a petit jury to convict him. But that he should at least have required the proof necessary to find a bill, no one, I think, will contend. The inquiry then is, what is the proof which the English laws and the laws of this country require to enable a grand jury to find a bill? Although I think there are many defects in the administration of justice, such, for instance, as the dependence of the judges on the crown, from which they receive their appointment, and to whom they may be looking up for further promotion and honour; that of being removable by an address from parliament which a minister can always command, and whose views and wishes, therefore, none else but an inflexible magistrate will dare oppose; and, particularly, in the sheriff's having the power to summon whom they please as jurors, and to pack them, if they think proper. Yet there is one part of their system which I have always admired, that is, the institution'of a grand jury. Their laws have wisely and humanely considered, that next to the disgrace of being convicted of an infamous offence, is the dishonour of being charged with one; and therefore, before they would submit a subject to the danger and inconvenience of being publicly arraigned, an impartial jury are on their oaths to declare the just cause for accusation. We have copied their system and improved upon it. Our juries cannot be packed: they are drawn by lot, and, in my judgment, criminal trials in this state, are as perfect as they can be. The nature of the evidence which can alone be properly offered to a grand jury, although not entirely conclusive as to the actual guilt of the prisoner, must be such, as if offered to the petit jury, would be legal evidence. Even examinations taken agreeably to 2 & 3 Philip & Mary, c. 10 (of force in this state), can only be given in evidence before a jury, when the court is satisfied the witness is dead, unable to travel, or kept away by the means or procurements of the prisoner. No other examinations can be given, or ought to be received in evidence; and a presentment founded upon any other, would not be that due presentment, without which a citizen’s life should not be put in danger.
“The above opinion is founded on the highest law authorities. A learned English judge, speaking on this subject, says: ‘The evidence to be given ought to arise to a high degree of probability. Absolute positive proof is not to be insisted uiion before a grand jury, and slight trivial suspicion and hearsay evidence, are not sufficient to ground such presentments upon; for although they are only in the nature of a charge, and do not carry a conviction, yet many inconveniences as well as expense and danger attend a charge of this sort, which no subject ought to undergo, but upon legal and sufficient evidence.’ This is the law of England on the subject of legal evidence, sufficient to enable a grand jury to find a bill. Our law is taken from, and founded upon it; and the public can now judge, whether the testimony submitted in this case, was such as ought, in one of so much importance and danger to the prisoner, to have authorized his delivery.
“Some distinctions are attempted to be drawn respecting territory and jurisdiction, the counsel for the prisoner having contended, that the treaty entirely alluded to the peculiar exclusive jurisdiction of each. I have no doubt, in my own mind, that Mr. Jay meant no other than the exclusive territorial jurisdiction of each nation. He seems to have carefully omitted the word ‘piracy,’ aware of the difficulty I have before mentioned, of distinguishing between what may be called piracy, or what laudable resistance to violence and oppression. This omission, therefore, must at once convince us, that Mr. Jay could only have meant private acts of premeditated and deliberate murder, arising from motives unconnected with any attempts which individuals, coming to be the citizens of this country, might at any time make to free themselves from the tyranny of imprisonment. It is wonderful, however, to me. that Mr. Jay having seen the necessity of omitting piracy, did not also omit, at least during the existence of the war, murder also. For, in attempts to regain vessels or escape from im-pressment, it is certainly as difficult to distinguish what is murder, as what is piracy. Upon an occasion of such importance to the future safety of his fellow citizens, Mr. Jay-certainly ought, and will, I suppose, explain, what was his meaning in that article of the treaty. The quotations from Yattel and Rutherford did not apply at all. They are merely meant to refer to the cases of children born at sea, to ascertain, as Vattel does very properly, the right as subjects or citizens of the nation to which the vessel they are born in belongs. To suppose that Vattel designed to extend the doctrine, so far as to mean that the ships of a nation are, with respect to the space of water they cover on the ocean, its territory as to jurisdiction, as completely as its lands or rivers are, is to prove him not only guilty of an inconsistency unbecoming so well-informed an author, but to make him flatly contradict doctrines expressed in other parts of his work. He then contradicts that neutral vessels do not make free goods; and it is on his authority the British rest, more than any other, their right to search neutrals.
“Among the reasons which should make our judges very cautious in deciding against the claim of citizenship, by persons assuming to be
“I now come to the policy of the measure in the United States. More than any other nation, except Great Britain, ought the privileges of our seamen to be vigilantly attended to— they are the instrument of our commerce, and to them their country must look up as the true means of becoming an important naval power—of having the ability to protect and guard their rights, and to insure to its citizens the blessings of peace: they are more exposed to the attacks and insolence of powerful and overbearing nations than any other class of our citizens, and are therefore more entitled to the care and attention of our public guardians. Possessing as the United States do, bulky products, every day increasing, and to export which great quantities of shipping and numbers of seamen are necessary, to what portion of their citizens can they look with morq anxiety than to them? Numerous as they may become within these ten years, who knows to what extent the parental and fostering hand of government may increase them within the like succeeding period? But to effect this we must value and cherish' them. We must recollect that they are not our men, but citizens—that they do not, the moment they become impressed by a superior foreign force, lose their rights or become lost to their country. Can it be supposed, because they are seamen, they have no families, no tender connexions, no comforts to endear their homes to them? Rough and boisterous as is the element they traverse, and laborious as are their lives, among none of our citizens are to be found more true independence and generosity, or more ardent attachment to their country. If, then, they have those passions, that impatience of insult, that invincible thirst for revenge, which indignities like impressment and tyranny never fail to provoke. are they to be punished for using opportunities to exercise them? Are they to submit to the manacle and the lash, without a murmur. because they fear their country, however possessing the means, may not have the inclination to protect them? If so, adieu to your commerce and your navy! Your seamen will fly to other governments more sensible of their value, and more disposed to assert and maintain their rights.
“I will here take notice of the letter which the judge was said to have received from the secretary of state, mentioning, that ‘the president advises and requests the delivery of the risoner.’ because it has made some noise, and do not view it in the same light with others. I believe that neither of them meant to influence the opinion of the judge—that they supposed it was a mere matter of course—that there was no doubt as to the identity or country of the prisoner; and they probably never heard of his claim of citizenship; that they were anxious, on the part of this government, faithfully to execute the treaty, and that the letter to the judge uad another intent. This I really believe to be the case; but the noise it has made will show the extreme impropriety of the higher executive officers of our government ever touching, in the most distant manner. on any subjects that may come before the judicial. However innocent the intention, as I think it was in this instance, it is very apt to give rise to unfavourable opinions;—and none more dangerous to a community can be entertained, than that of a wish of the executive to influence the judicial. It weakens the confidence of the public in both; and lessens the respect it is their wish to show them. The present instance will probably operate to advantage; because it is to be supposed that after this our secretaries will be careful to avoid ever writing to a judge on any subject that may possibly come before him. In one thing I perfectly agree with Mr. Bee; and that is. in his avoiding to question the constitutionality of the treaty, although I think it constitutional. On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion-of an individual, or of two or three, above that of both branches of congress, a doctrine which is not warranted by the constitution, and will not, I hope, long have many advocates in this country.
“I shall here conclude my remarks on this case. They are made in that spirit of deference and respect, which is intended to avoid giving offence, while it examines with candour the subject under discussion. My earnest wish is to draw the attention of congress to the amendment of the act, and to prove to them the necessity of providing in future against the delivery of any fugitives, unless a bill is found against them by a grand jury: to guard them against entering into any articles on this subject in other treaties, unless they assent to it; and particularly to warn them against ever forming any agreements respecting fugitives from justice, except with nations whose citizens possess the right of trial by jury, and are willing to reciprocate so indispensable a provision.
“A South Carolina Planter.
“Charleston, August 3d, 1799.”
(The following are such of the documents appended to the above letter as are not contained in the president’s message of Feb. 7, 1800, given post):
Letter from Mr. Moodie, British consul at Charleston, to Judge Bee;
“Charleston, Nov. 27, 1799.
“Sir: In consequence of the very great opposition made to the delivering up under the 7th article of the treaty of amity. &c. Thomas Nash, alias Nathan Bobbins, one of the principal mutineers on board his Britannic majesty’s late ship Hermione, and of the numerous publications on that subject, as well in this as others of the United States, I wrote to Admiral Sir Hyde Parker, requesting he would send me minutes of the court martial, meaning to communicate the contents to you; but being informed that a compliance with such request would have been contrary to the rules of the British navy. I beg leave to enclose you a copy of the admiral’s answer, which I consider fully adequate to the purpose I intended. Whilst on this subject I cannot help remarking,that about the time my counsel moved for a habeas corpus, I happened to be in the court of common pleas, when Mr. Iver, a gentleman of the bar, addressed me. and mentioned his intention to oppose the delivery of the prisoner,
“The Hon. Thomas Bee, Esq.”
Extract of a letter from. Admiral Sir Hyde Parker, to Benjamin Moodie, Esq., his Britannic majesty's consul in Charleston: dated on board the Abergavenny, in Port Royal har-bour, Jamaica, 13th September, 1799:
“Sir: I have received your letter of 21st of last month, with a copy of another (not yet re-» ceived) of the 3d of same month; and in answer to both, am to acquaint you that Nash has been executed and hung in chains, agreeably to the sentence of a court martial, and that he confessed himself to be an Irishman: and it further appears by the Hermione’s books
“I had the command of the boats of thesquad-ron on the day of his execution, and attended with them to see his body hung in chains, agreeably to an order for that purpose, from Sir Hyde Parker, Kt., commander-in-chief. &c., &c., at Jamaica. Geo. Hans Blake,
“Late commander of his majesty’s sloop L’Am-eranthe.”
“The foregoing was duly attested before me this 29th November, 1799.
“John Mitchell, Q. U.”
Letter from Mr. Moultrie to Mr. Moodie:
“To Benjamin Moodie, Esq., His Britannic Majesty’s Consul in Charleston—Sir: Having discharged my duty as a counsellor in the case of Jonathan Robbins, and having but little time to bestow on newspaper altercations, it was neither in my expectation nor my wish to be called forth further on this subject, and especially, as the author of a publication in a newspaper: but, sir, I find I am indebted to your politeness and moderation, or the zeal of your printer, (if he is your commentator,) for this occasion of my coming forth in this publication. In your letter of the 27th ultimo, to Judge Bee, respecting the case of Robbins, you conclude by saying you were informed by Mr. Iver, that Mr. Sasportas had spoken to Mr. Ker and myself as Robbins’ counsel, and with an asterism annexed to the word Sasportas, referring to an annotation below, this brilliant note is in italics, as follows:—‘Mr. Sasportas was the agent for the French Republic at the time their cruisers were permitted to sell their prizes in this port. The records of the District Court in Admiralty causes will prove this.’ If I understand right, and can read right, and if I understand the sentiments and views of the advocates of your nation in this country, (and think I have contemplated them since the dawn of our Revolution,) this bright note and those capitals are intended as an insinuation to the world, that French influence was at the bottom of Robbins’ defence, consequently was the mover of his counsellors. If I am mistaken, sir, in my sentiments you will pardon me, and I hope at the same time correct the error; but, sir, these sentiments are the natural impressions of your conduct, and I will hold them till properly effaced. The cry or insinuation, sir, of French influence may be an admirable engine of British policy in this country, and serve to promote many of their purposes, but as to myself or any injury it may work towards me in this case, you have lost your aim, sir. The mens conscia sibi recti defies your attack; your shaft has no sting, sir, its poison is ineffectual; and your own disappointment shall be your own punishment. When I was first called on in Robbins’ case I considered it generally and gave my opinion that I thought such was the prevailing influence of opinions and sentiments of those in power, that every effort would be vain; he had not then been represented to me as an American citizen, and I considered the case on the point of jurisdiction only. I gave it but a short consideration, and soon determined, and thought no more of it. Matters rested thus for some days—till the day before Robbins was tried. I was then accidentally informed, in conversation with a friend, that Robbins was an American. I was struck and alarmed to think I had deserted him. I immediately went to Mr. Ker and desired him to prepare himself for the argument next morning. I went home and considered the case, and met Mr. Ker in court the next day. I had never yet seen Robbins, nor had I ever any intercourse with him till he was pointed out to me, and I went up and spoke to him in court, the day of his trial; nor had I till then ever seen one of his papers. On my coming into court, amongst the first things I did, I asked the clerk for the papers, and amongst them found Robbins’ certificate of nativity and citizenship. I examined it and found it had every mark of authenticity; no erasure, no obliteration; that its colour and appearance were natural and correspondent with its date, and that the handwriting of the notary was genuine and can be proven here. But one thing further struck me: on inquiring of the clerk if this paper was found on Robbins when first taken, and being informed it was, I was of opinion it was genuine; and was clear if it was not, it was no fabrication in Charleston. Under these circumstances, sir, I undertook the cause of Robbins; a cause, sir. • in which the rights of mankind and those of my country were deeply involved; a cause, sir, which I held myself bound in duty, as an American, to defend and support; which pointed at the constitution and vital principle of American independence. And, give me leave further to tell you, that in this cause, I neither undertook it from French influence or an idea of advancing their interest, nor from the promise or expectation of any fee or reward, and that I never have received any such. Every one, sir, who knows me, knows my politics; they have been uniform since 1775, and I hope will continue so to my latest hour. I honour ■and respect all nations: but I hate tyrants, I love my country and will defend its freedom. I am, sir, with due consideration, your humble servant, Alexander Moultrie.”
Letter from Mr. Sasportas:
“Messrs. Freneau & Paine: The unexpected attack of Mr. Moodie, the British consul, in Timothy’s paper of Monday last, I am induced to notice, not from any apprehension of its injurious effects on the public mind, respecting my
“N. B. No one knows better than Judge Bee that I was agent to the French republic, and no one knows better than myself that Mr. Moodie was agent for the British government; by the repeated vexatious impediments which were raised up by him in every case, without the colour of a legal defence. The numerous decrees of the supreme court of the United States, in favour of the captors, prove the fact.”
Immediately upon the meeting of congress a call was made upon the president for papers, &c., connected with Robbins’ surrender, to which the following answer was given:
“Message from the president of the United States, transmitting a report of the secretary of state, and sundry documents relative to the requisition for and delivery of Jonathan Robbins, in pursuance of a resolution of the house of representatives of the 4th instant.
“Gentlemen of the House of Representatives: In consequence of your request, to me conveyed in your resolution of the fourth of this month, I directed the secretary of state to lay before me copies of the papers intended. These copies, together with his report, I now transmit to the house of representatives for the consideration of the members. John Adams.
“United States, February 7, 1800.”
“Report.
“Department of State, February 6, 1800.
“The secretary of state has prepared, as directed. and now respectfully submits to the president of the United States, copies of the papers which probably were contemplated by the house of representatives in their resolve of the 4th instant, although no requisition, as the resolve supposes, has ever been received, nor any communication made to the judge of the district court of South Carolina, concerning any man by name of Jonathan Robbins. But by the proceedings before that judge, as they have been published, it appears that a seaman named Thomas Nash, the subject of the British minister’s requisition, did assume the name of Jonathan Robbins and make oath ‘that he was a native of the state of Connecticut, and born in Danbury in that state.’ The secretary, therefore, besides the copy of the requisition, and the copies of his letter to the judge of the district court of South Carolina, and of the judge’s answer, has prepared, and herewith encloses, copies of the certificates of the select men of Dan-bury, and extracts of letters from Admiral Sir Hyde Parker, satisfactorily proving that the Thomas Nash calling himself Jonathan Robbins, who, on the requisition of the British minister, was delivered by the judge aforesaid, with the assent of the president of the United States, was not an American citizen, but a native Irishman, who, to his other crimes, added perjury, in the hope thereby to escape the punishment due to piracy and murder. The original certificates of the select men and town clerk of Danbury are in the secretary’s possession, and he has compared the extract of Admiral Parker’s letter to Mr. Liston with the original, and the extract of the admiral’s letter to the British consul at Charleston with the passage as recited in the consul’s original letter to Mr. Liston. All which is respectfully submitted. Timothy Pickering.”
(No.l.)
Copy of a note from Robert Liston, Esq., envoy extraordinary and minister plenipotentiary of his Britannic majesty, to Timothy Pickering, secretary of state of the United States:
“R. Liston presents his respects to Col. Pickering, secretary of state. A seaman of the name of Thomas Nash having beeen committed to jail in Charleston. South Carolina, at the instance of his majesty’s consul there, on suspicion of his having been an accomplice in the piracy and murder committed on board his majesty’s ship Hermione, and information of the circumstance having been transmitted to Admiral Sir Hyde Parker, a cutter was dispatched to Charleston with an officer on board, to whom the man was well known, in order that his person might be identified, and that he should be carried to the West Indies for trial. But, on the application of the consul for the restoration of Nash, in conformity to the treaty of 1794, Judge Bee and the federal attorney were of opinion that he could not with propriety be delivered up without a previous requisition on my part made to the executive government of the United States. May I therefore request, sir. that you will be pleased to lay this matter before the president, and procure his orders that the said Thomas Nash be delivered up to justice.
“Philadelphia, May 23, 1799.”
(No. 2.)
Letter from the secretary of state to Judge Bee:
“Department of State, Philadelphia,
June 3, 1799.
“Sir—Mr. Liston, the minister of his Britannic majesty, has requested that Thomas Nash, who was a seaman on board the British frigate Hermione, and who, he is informed, is now a prisoner in the jail of Charleston, should be delivered up. I have stated the matter to the president of the United States. He considers an offence committed on board a public ship of war on the high seas to have been committed within the jurisdiction of the nation to whom the ship belongs. Nash is charged, it is understood, with piracy and murder, committed by him on board the above mentioned British frigate, on the high seas, and consequently ‘within the jurisdiction of his Britannic majesty,’ and therefore, by the 27th article of the treaty of amity with Great Britain, Nash ought to be delivered up, as requested by the British minister, provid
“(Signed) Timothy Pickering.
“The Honourable Thomas Bee. Esq., Judge of the District Court of South Carolina.”
(No. 3.)
Letter from Thomas Bee, Esq., to the secretary of state, dated:
“Charleston, South Carolina, 1st July. 1799.
“In compliance with the request of the president of the United States, as stated in your-favour of the 3d ult., I gave notice to the British consul, that at the sitting of the district court on this day, I should order Thomas Nash, the prisoner charged with having committed murder and piracy on board the British frigate Hermione, on such strong evidence of his criminality as justified his apprehension and commitment for trial, to be brought before me on habeas corpus, in order to his being delivered over, agreeably to.the 27th article of the treaty of amity with Great Britain. ■ The consul attended in court, and requested that the prisoner should remain in jail until he had a convenient opportunity of sending him away. I have therefore directed that he remain in prison until the consul shall find it convenient to remove him. I have the honour to be. with great respect, your most obedient servant, “Thomas Bee,
“District Judge of South Carolina.
“Honourable Timothy Pickering, Secretary of State.”
(No. 4.)
“Danbury, Sept. 16th, 1799.
“We, the subscribers, select men of the town of Danbury in the state of Connecticut, certify that we have always been inhabitants of said town, and are from forty-five to fifty-seven years of age, and have never known an inhabitant of this town by the name of Jonathan or Nathan Bobbins, and that there has not been, nor now is, any family known by the name of Bobbins within any limits of said town.
“Certified per: Eli Mygot.
“Eben Benedict.
“Justus Barnum.
“Ben. Hichcop.”
“Danbury, September 16th, 1799.
“The subscriber, late town-clerk for the town of Danbury, in the state of Connecticut, certifies that he kept the town records twenty-five years, viz.—from the year 1771 until the year 1796; that he is now 56 years of age, and that he never knew any person by the name of Bobbins born or residing in the said town of Dan-bury, during that term of twenty-five years, before or since. Major Taylor.”
(No. 5.)
Extract of a letter from Admiral Sir Hyde Parker to Bobert Liston, Esq., envoy extraordinary and minister plenipotentiary of his Britannic majesty to the United States, dated:
“Port Royal Harbour (Jamaica), September 9th. 1799.
-I have had the honour of receiving duplicates of your excellency’s letters numbered 10, 11 and 12, and in answer thereto, acquaint you that in consequence of Nash, one of the ringleaders in the mutiny, murders, &c„ on board the Hermione. being delivered up by the United States to me, he has been tried at a court-martial, and sentenced to suffer death, and after-wards hung in chains, which sentence has been put in execution. He acknowledged himself to be an Irishman.”
(No. 6.)
Extract of a letter from Benjamin Hoodie, Esq., consul of his Britannic majesty at Charleston, (South Carolina,) to Bobert Liston, Esq., envoy of his said majesty to the United States, dated:
“November 19th, 1797.
“In consequence of many obstacles I had to encounter in obtaining the delivery of Thomas Nash, late of his majesty’s ship Hermione, and of the numerous publications to the northward, and in this place, I wrote to Admiral Sir Hyde Parker, requesting he would be good enough to send me minutes of the court-martial; to which he answered under date 13th September— I am to acquaint, you that Nash has been executed agreeably to a court-martial, and that he confessed himself to be an Irishman: and it farther appears by the Hermione’s books that he was born at Waterford; on the 21st December, 1792, entered a volunteer on board the Dover, received £3 bounty-money, and was removed to the Hermione, 28th of January, 1793. And with respect to transmitting the minutes of his trial, that is not in my power, but rests with the lords of the admiralty only.”
The following letter's subsequently were produced to the house:
Extract of a letter from the secretdry of state of the United States, to the president of the United States, dated:
“May 15th, 1792.
“Mr. Liston informs me. that an information received by Admiral Sir Hyde Parker, of one of the mutineeers and murderers of the officers of the British frigate Hermione, being at Charleston, South Carolina, the admiral sent thither a vessel on purpose to receive and carry the culprit to the fleet to be tried; but that the district judge had not deemed it proper to deliver him up. This question has occurred before, respecting the crew of the Hermione, in consequence of some of them being apprehended in New Jersey, where they were tried and acquitted. One only was detained some time longer, on a suggestion or expectation of decisive evidence against him: but it appeared afterwards that this man was not involved in the offence, and at Mr. Liston’s request he was discharged. The only and legal question was, whether an offence committed on board a public ship of war, on the high seas, was committed within the jurisdiction of the party demanding the offender, on a just construction of the 27th article of the treaty. Upon a further consideration of the subject. I am inclined to answer in the affirmative; I supppose the offence committed on board the Hermione to have been a most atrocious act of piracy accompanied with murder: that all nations having jurisdiction in this case, if the pirates be found within their dominions, any of them may try and punish them; but wanting the full evidence for that purpose, it would seem reasonable, and essential to the due administration of justice, that the culprits be delivered up to the government of the country to which they belong; all nations being interested in the punishment of such pests to society. On the point above-mentioned about the jurisdiction, it may be observed, that besides the general concurrent jurisdiction held by Great Britain on the high seas, her officers have, and exercise, a particular jurisdiction on board of their own ships. Por these reasons, and as the 27th article of the treaty especially requires the delivering up of murderers. 1 respectfully submit my opinion, that the judge of the district of South Carolina should be directed to deliver up the offender in question, on the demand of the British government by its minister.”
“Quincy, May 21st, 1799.
“Your favour of the 15th is received. I have no doubt that an offence committed on board a public ship of war, on the high seas, is committed within the jurisdiction of the nation to which the ship belongs. How far the president of the United States would be justifiable in directing the judge to deliver up the offender, is not clear. I have no objection to advise and request him to do it.”
House of Representatives, Feb. 21, 1800.
Mr. Livingston, in consequence of a reference of the message of the president on the. case of Jonathan Robbins to a committee of the whole house, and of another resolution proposed by Mr. Bayard thereupon which had also been so disposed of, the amount of which resolution was an approbation of the conduct of the executive in his proceeding on that subject, proposed the following resolutions: “Resolved, that it appears to the house that a person calling himself Jonathan Robbins, and claiming to be a citizen of the United States, impressed on board a British ship of war, was committed for trial in one of the courts of the United States for the alleged crime of piracy and murder, committed on the high seas, on board the British frigate Hermione. That a requisition being subsequent to such commitment, made by the British minister to the executive of the United States for the delivery of the said person (under the name of Thomas Nash) as a fugitive, under the 27th article of the treaty with Great Britain, the president of the United States did, by a letter written from the department of state to the judge who committed the said person for trial, officially declare his opinion to the said judge that he ‘considered an offence committed on board a public ship of war to have been committed within the jurisdiction of the nation to whom the ship belongs,’ and in consequence of such opinion and instruction, did advise and request the said judge to deliver up the person so claimed to the agent of Great Britain, who should appear to receive him, provided only, that the stipulated evidence of his criminality should be produced. That in compliance with such advice and request of the president of the United States, the said person so committed for trial, was, by the judge of the district of South Carolina, without any presentment or trial by jury, or any investigation of his claim to be a citizen of the United States, delivered up to an officer of his Britannic majesty, and afterwards tried and executed on a charge of mutiny and murder. Resolved, that inasmuch as the constitution of the United.States declares that the judiciary power shall extend to all questions arising under the constitution, laws and treaties of the United' States, and to all cases of admiralty and maritime jurisdiction, and also that the trial of all crimes (except in cases of impeachment) shall be by jury; and such trial shall be held in the state where such crimes shall have been committed, but when not- committed within any state, then, at sucn place or places as congress may by law have directed; and inasmuch as it is directed by law, that the offence of murder committed on the high seas shall be deemed to be piracy and murder, and tha’ ‘all crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be first brought.’ Therefore, the several questions, whether the aforesaid crime of piracy or murder was committed within the exclusive jurisdiction of Great Britain; whether it comes within the purview of the said 27th article: and. whether a person stating that he was an American citizen, and had committed the act of which he was accused in attempting to regain his liberty from illegal imprisonment, ought to be delivered up without investigation as to his citizenship, or inquiry into the facts alleged in his defence, are all matters exclusively of judicial inquiry, as arising from treaties, laws, constitutional provisions, and cases of admiralty and maritime jurisdiction. That the decision of those questions by the president of the United States, against the jurisdiction of the courts of the United States, in a case where those courts have already assumed and exercised jurisdiction; and his advice and request to the judge of the district court, that the said person thus charged should be delivered up, provided only, such evidence of his criminality should be produced as would justify his apprehension and commitment for trial, are a dangerous interference of the executive with judicial decisions; and that the compliance with such advice and request on the' part of the judge of the district court of South Carolina, is a sacrifice of the constitutional independence of the judicial power, and exposes the administration thereof to suspicion and reproach.”
The question of a reference to a committee of the whole was taken and carried: ayes, 55.
Tuesday, February 25th.
The house having resolved itself into a committee of the whole, on the message of the president respecting Jonathan Robbins, Mr. Edmond was called to the chair. A short debate took place, whether the committee should take up the business of the resolution first proposed by Mr. Bayard, or on those subsequently offered by Mr. Livingston. Mr. Bayard seemed inclined to withdraw his motion, but the committee seeming of opinion that both resolutions were within their jurisdiction, and that they might proceed on either, the question was taken whether the committee should proceed on the resolution of Mr. Livingston, and carried in the affirmative. Messrs. Bayard, Rutledge, Otis, &c., voting in favour of the question; and, Messrs. Livingston, Nicholas, &c., voting against it. Mr. Livingston entered upon an argument in support of the resolutions which he had some days before submitted to the house, and which now were taken up. Soon after he began the discussion he was proceeding to read a deposition of Jonathan Robbins, and certificates accompanying the same, to prove himself a citizen of the United States, in which the deponent swore, before the court of South Carolina. that he was born at Danbury, in the state of Connecticut, and that he was impressed from on board the American brig Betsey, by the crew of the British frigate about two years before, where he was detained, contrary to his will, until the mutiny occurred: when Mr. Bay-ard opposed the reference to a fact so incompetently authenticated as the report of a case upon newspaper testimony, especially when, if it had been the desire of the gentlemen to have introduced it as evidence, it was extremely easy to have procured the record of the court before he proceeded on his allegations. If such evidence as tbis was to be admitted, other, and perhaps more important, might next be introduced to oppose upon the committee. Besides, it certainly must be looked upon as ex parte evidence, which it was impossible to repel. Mr. B. submitted to the house, whether it could be in order to admit any such evidence to support the resolutions when all the documents which had been asked for, and which had come to the knowledge of the executive, had been admitted to the bouse. Mr. Gallatin, on the question of order, contended for the admission. This document, be said, was referred to as authentic, in his letter. That, by the proceedings before the judge (Bee), as they have been published, it appears that a seaman named Thomas Nash, did assume the name of Jonathan Robbins and make oath that he was a native of the state of Connecticut, &e. Certainly it cannot be improper to refer to the identical document there mentioned. If it was proper for the secretary of state to make the allusion, the house could
It was further said that this deposition was referred to by the secretary. Surely then it was introduced as evidence upon that authority, but how had the gentleman been assured that this was the same deposition, an extract of which was taken by the secretary? Did it follow that because the secretary referred to a printed paper, that this was the authentic one? He presumed no gentleman would vouch for the veracity of this paper. The secretary had only extracts from the document of such parts as he deemed necessary for the information of the house, supposing this was the case meant. Mr. Nicholas was surprised that the gentleman should oppose the reading of what he supposed the secretary had authenticated copies of in his office; the secretary had certainly referred to an authenticated affidavit which was published, and it was presumable this was the one. The result of this declaration must be, if the gentleman thinks the house is imposed upon by a reference to a false paper, that the committee must rise, and the house ask for the authentic copies, which may aid their decision. But, Mr, Nicholas thought the information was sufficiently authentic; the house had asked the papers of the president, some papers were sent, and instead of sending this original paper, he had referred to the printed report. This had never been contradicted, and had every appearance of authenticity. He really hoped that the objection would not be insisted on, and the discussion arrested in this stage. Mr. Rutledge hoped the paper might be read, but not for the purpose for whieh it was introduced; he wished it as part of the gentleman’s speech, but he did not think this was the proper tipie; he did not think the gentleman was come to that chasm in his speech which was supposed by the gentleman from Connecticut. The gentleman had produced facts and stated evidence, among which he was proceeding to introduce this paper. Mr. Rutledge said he was willing to procure all the information, and that other gentlemen should also be possessed of it. on which account, when the subject was first mentioned, he moved its reference to a select committee; in that case, all the facts and every necessary light would have been procured, but it was referred to a committee of the whole. Mr. Sedg-wick (as speaker), thought as this was merely a question of order, and as the acts and deliberations of the committee of the whole were prescribed, it could only have been proper to have made it an act of the house. The committee of the whole, he said, were limited to the documents referred to it by the house, and if they found them insufficient, it was their duty to rise and go to the house for more. If it was the intention of the gentleman to read this as evidence, (which we must suppose was intended,) and it was not evidence, it might shed darkness, but it could not illuminate. He-was surprised, that gentlemen, who were sitting there in their inquisitorial capacity, should bring forth charges of a serious nature against two officers, of high confidence, and, deservedly so in the public opinion, upon evidence which cannot be deemed authority, when, for-merely asking, they could receive that which was authentic. Mr. S. said, he was not afraid of the reading of any papers whatever, on any subject, because he must possess a desire to come at the whole truth. “If there be a man,” said he, “who possesses the public confidence unworthily, strip him of that confidence and his power too, but do it not, sir, on bare newspaper publication.” Mr. S. said, that his reasons for opposing the reading were, not because that paper was deficient o. that formality which courts of justice require; he should, therefore, waive formalities, except the evidence should appear evidently false. But the deposition itself he believed to be perfectly irrelevant to the object of inquiry. It was not, in his opinion, material whether this man claimed to be an American citizen or not, nor was it material whether the paper under question was in the office or not; he thought the only inquiry ro be, whether the president had interfered with the judicial authority or not; and, whether the judge had been guilty of a breach of his duty, in obeying the orders given him by the executive of the United States. There were, to be sure, allusions made to a printed trial, but it was by the secretary of state, and not by the president; he had said no such thing, and therefore he was not culpable. The only thing which he believed the president considered was, what must appear a very clear and well «ascertained fact, to wit: that a ship or vessel, of any power, was to be considered as the jurisdiction of that power to whom it belongs, and not whether the man was an American citizen or not. Mr. Livingston said, he did wish to read this paper as part of his speech, and he believed it a very material part, because it was a justification of a point which he wished to establish. He wished to show the committee, that Jonathan Robbins claimed to be an American citizen, and that he said he was impressed; this he swore in court, and that he did so he hoped would be admitted. He said he only introduced it with this view. Surely he could not be so far mistaken in his law knowledge as to be thought to have said, that the culprit could be evidence in his own behalf. If he did say he was a citizen, then the matter, upon examination, must appear more serious than gentlemen would be willing to think. “Did the speaker think it was his desire,” Mr. Livingston asked, “to criminate the man who stood so deservedly high in the public estimation?” Surely the mere reading of this paper could not contribute to that crimination, since it was with the other papers, furnished to the house, as documents which were asked for by the house. The house received their papers (this among others, for to this the secretary referred the house) to assist them in forming their judgment. If “newspaper evidence” was given to the house, if unauthenticated affidavits, who then was to blame? The house asked for all papers relative to the subject, the president furnished this, and therefore, if any blame attached, it must be to him.
It was said, that this paper was in the office of the secretary of -rate; that this was not an act of the president, that this was a report of the secretary of state, and that he only was answerable for it. “Sir,” said Mr. L., “when the president says, that he, in conformity ' to the request of the house, had ordered the secretary to bring him the papers, and that he submits them to the house for their consideration, does he not take the act off the secretary and appropriate it to himself? Certainly he does. The conduct of the gentlemen must appear a little strange when it is considered that a part of these papers, such as certain affidavits from Connecticut, that Robbins was not born there, and a letter from the British admiral in the West Indies, stating that he was an Irishman, and entered into the service,—I say it is unaccountable that gentleman are willing to admit this part of the report, which was never required by the house, and refuse another part which was. and of which it was the duty of the house to be informed, if information could
Hr. Bayard had no doubt but it was the gentleman’s intention to impress the force of the facts contained in that paper, upon the minds of that committee; and. to suppose it would have no impression, would be absurd. It would afterwards be said that this man was admitted to be an impressed American citizen, and that he was praisewori ,.v in committing what would then be called the homicide. The decision of the committee would be much affected, he said, by the kind of evidence which was alleged. If this was admitted, it would be impossible to ascertain the extent of the principle. Other depositions may be produced; indeed. he had no doubt but the gentleman could get proof to any point which he might think it material to ascertain. In saying this, he did not mean to insinuate that any improper steps would be taken by that gentleman, but there were volunteers enough to be found who would step forward, in order to answer party purpose, and make oath of anything. But what the gentleman had now acknowledged, his reference to that paper was a work of supererogation; he now said, that he only wanted to prove that the man claimed to be an impressed American citizen. This is admitted in the letter of the secretary of state—“Sir.” said Mr. B., “you are about to inculpate the conduct of the president, and of the district judge of South Carolina; and to do this, shall you do it on the affidavit of a man at the hazard of his life; and a man who could commit murder and piracy, for which he was then going to be executed? It was the last resource of the wretch himself.” Mr. B. had no doubt, but the gentleman would have brought that paper as evidence, and though derived from the vilest possible source, he would certainly have turned it to serve his point. With this idea, and for the sake of consistency, (for the rules of the house would admit, in any other part of the examination, what was now admitted,) and viewing the principle injurious, he had thought it his duty to put a stop to it in time. Mr. Livingston supposed he should increase the astonishment of gentlemen still more, when he declared, that he did not believe a word of the affidavit, but he believed Nash was an Irishman, and that he entered on board and committed all the crimes charged to him. It was clear that the affidavit could not be evidence. In admitting this, he believed he did not surrender one point of the resolutions; he should prove that all he wished to ascertain was that such a claim was made to the court. Mr. Gallatin did not consider the question to be. whether this should be considered as evidence, but whether the gentleman might be permitted to read the paper—whether as part of his speech or whatsoever. It was certainly no legal evidence, and therefore if a trial was holding, or if the ground was an impeachment, refusal would be proper; but upon what ground the gentleman was interrupted at this time was inconceivable, except it was to throw all possible impediments in the way of the investigation. The letter from the British admiral to the British consul was not legal evidence, but yet that was inserted in the report of the executive, that was sent no doubt to disprove some fact which was related. What was that fact? Why, that this man had laid claim to citizenship; and surely, while the gentleman "was stating the facts contained in his resolutions, he had a right to elucidate that fact by reading a paper so intimately acquainted therewith. Mr. G. said, he did not know what use the gentleman made of this paper, but it is certainly proper to hear what he intended by the reference, before he ought to have been stopped. There certainly could be no doubt, Mr G. thought, that the secretary of state knew this affidavit to be authoritative, by the reference he made to it. If this paper could not be read for himself, he should wish to procure further information, before he should think it proper to proceed. Mr. Bayard asked, where could be the necessity of proving a fact which every member of the house was willing to admit? No man but would acknowledge that Nash claimed to be an American citizen; but perhaps the will of the gentleman was to have additional light on this subject, on which account he introduced the deposition. Mr. B. said, he was willing only to proceed upon what the house knew from the documents before them, and not take a step on precarious ground. It must be well known what the gentleman wanted to get this admission for: he no doubt wished to prove that .upon his own mere suggestion, that he was an American citizen, and that he was impressed, he was entitled to a trial by jury in this country, and on that account, that the act of sending him away was unconstitutional. This would lead to an extensive field of argument. If there was any necessity for more evidence, or to call witnesses to the bar of the house, let proper measures be taken to procure it, but let it not come forward in any other way. Mr. Dana read the resolution first offered to the house for a call of papers relative to Jonathan Robbins.—This was answered, he said, by the secretary of state, that no requisition or proceedings had been had in that name, but he presumed allusion was made to the case of Thomas Nash, concerning whom proceedings were had in.the district court of South Carolina in that way, and that only the secretary made reference to the printed report In this blundering way, Mr. Dana said, the business was begun. (He was called to order.)—In addition to this, he said the proceedings of gentlemen were erroneous, but,notwithstanding that, Mr. D. said he would gratify the wish of the gentleman as far as his vote would go, to read it, but only as part of his speech; no doubt he wished to support some point of his argument by it, and in that view he had a right to read it; but that it was evidence, he denied. General Lee said, he did not profess to understand the rules of the house perfectly, but he must indulge a presumption, that they could have but one grand object in view, to encourage and maintain full and fair discussion, on every subject, whatever it might be, that could come before the house. That being necessary, surely a rule must be bad, indeed, that would bar a gentleman from reading anything that might tend to elucidate the subject. He therefore, thought it the duty of the committee to allow the gentleman from New York to read this, and every other paper which might enable him to proceed on so serious a charge as the one exhibited in the resolutions. Were not gentlemen fully adequate to judge what may be wrong, when he should come to the application? If he asked the papers of the president of the United States, was he to be content with those only which should come through his ministers? That could not be the true ground of ■ proceeding. Suppose the gentleman be stopped from reading what he thinks material, and the resolutions which he has introduced should afterwards be negatived; “I pray you t.o say, sir,” said Mr. Lee, “what would be the consequence? Would not the people say that no other possible decision could be had by the house, because the committee of the whole laid their hand upon every effort the gentleman used to substantiate his charges? They certainly will, and no act can more increase the means of the opposition to the measures of the government.” Upon this ground he hoped the gentleman would be permitted to proceed, and the whole truth be made to appear. If gentlemen should determine it out of order, he would move that the committee rise in order to get hold of all the authentic papers.
The chairman having stated his reasons, con-
Mr. Gallatin appealed to the committee from the decision of the chair, when there appeared 39 in favour of the decision, and 48 against it.
Wednesday, Feb. 26th.
Mr. Davis moved, that the committee of the whole house be discharged from the further consideration of the resolutions proposed by Mr. Livingston and Mr. Bayard on the subject of Jonathan Robbins. The small progress, Mr. G. said, which was made yesterday in the discussion, fully convinced his mind that nothing at all would be done in it; besides, were he convinced that the discussion would be impartially conducted, he did not know of any possible good that could arise from the adoption of the resolutions. If there had been any error in the proceedings of the executive, he conceived that error would correct itself. If there was an improper interference, he was certain it could not have arisen from improper motives, and therefore he sincerely hoped he should not be called upon to give an opinion on the subject. Nor, on the other hand, was he at all prepared to compliment the executive, or any officer of the government, for having done what he thought to be right. If he had done right, it was his duty. He did not think it of any great importance, but most assuredly, if the argument was extended, it would be made a case of great importance. It was better, however, to let the case of Jonathan Robbins sleep in the committee of the whole, where it was. He was not prepared to criminate, nor was .he prepared to applaud. Mr. D. did not think the evidence before the house was sufficient to form a decision upon, and he professed himself unable to make up a determinate opinion; but if he could form any, the deficiency of evidence furnished must.raise his suspicion. Reference was yesterday made to a paper; it might be authentic or it might not: it was impossible to say to what papers gentlemen might be disposed to refer, and for gentlemen to sit there as judges having papers read the authenticity of which it was impossible to know, was to judge in the dark. He hoped that if the house were not prepared to discharge the committee of the whole, they at least were for a call for such authentic papers as could be procured, for from the present documents it was impossible to form a correct judgment upon this very disagreeable and irksome business. He had no doubt but many gentlemen had formed their judgments one way or the other, but he had not. Mr. Randolph said that no gentleman had a higher respect for the motives of the gentleman from Kentucky than himself; but however. disagreeable it might be, he must differ from him in his present opinion. He really hoped the gentleman would reconsider the motion he had made, and not stop the gentleman from New York in this early stage of the business. If there were any defects in the papers, and their authenticity was questionable, it must not arise from the gentleman from New York, .but from those whose duty it was to furnish all the facts relative to the business. He was obliged to read a printed paper, because those with whom the authoritative copies are, have •not thought proper to furnish the house with them. He hoped, if a stop was put to the proceedings. it would not be to discharge the committee, but to call for authentic copies of all the papers within reach of the government. It must be acknowledged that the man .whose case the house are considering, did put in his claims to citizenship, and the protection of his country on that account. If that acknowledgment is refused on account of the paper which has been produced being a newspaper, reference must be made to what is within reach of the house—more authentic papers. The gentleman had supposed that most of the members had .made up their minds on the business without other papers; • where he procured that information, Mr. R. could not tell; but certain it was that his mind was not made up; he professed to be still in a state of incertitude; he therefore was sorry the gentleman had not made his motion until it would be known by the house whether the gentleman from New York had any further evidence to adduce. Could he undertake to say that his mind would not be made up, and the subject appear to him in a very different point of view after a full and fair discussion? Mr. R. thought the very reason which the gentleman had given for his motion would operate as a strong argument • against it; with him it certainly had that impression; be thought a discussion was more proper to remove incertitude from the mind, than that, because such a state existed, the committee should be discharged. The public mind, he believed, was very uneasy on the subject, and this inquiry should not be eluded; he therefore ought to have withheld his motion, that a discussion might be had from which the people could draw their deductions. If, after all the evidence that was to be produced, he could draw a conclusion similar to that expressed by the gentleman, Mr. R. said he would cordially join with him, that no expression ought to be made by the house without being well supported by facts. General Lee considered the motion would have the complete effect any gentleman could wish whose desire it was to reprobate the conduct of the administration of our government. How could the motion be necessary —how useful? “If they were to ask more evidence,” said Mr. Lee. “I would vote for it to be produced; they have brought the subject before the house; let us see it in the purest col-ours which it can be placed in. We are ready to meet them hare; we are willing that they have every evidence that can be obtained to elucidate their charge, but let not the executive be hung up to reproach without a trial; let not suspicion be encouraged, which must have all the effects of a substantial charge. I wish them to go on with the discussion, that all truth may be disclosed, and every fair light be given which the case will bear, for now the people of the United States have their eyes fixed upon our proceedings on this important question.” Mr. Macon was in favour of the motion; if the committee of the whole was not to be discharged, he hoped at least the business would be postponed till the public business of the session was over; there were many public bills, he said, that must be passed. The house was called upon to judge with almost no testimony, and yet upon this uncertain ground, perhaps a whole week might be spent of the most precious time of the house, for if the house was to rise at the time proposed, the loss of this time would certainly be felt. As to the impression it would leave on the minds of the people, they had as many facts to judge from as the house, and they certainly would form an opinion whether the house did so or not. Gentlemen were very much mistaken, he said, if they undertook to lead the people; they would think, and they would show what their judgment was when a proper time came for that purpose. . The time the people would take to show their approbation or disapprobation of the measures of the administration, was at elections, and then they would do it. Gen. Smith said if the object of the motion was to get better testimony, he thought it a very proper one; the house certainly ought to be possessed of the documents of the district court of South Carolina, on this case, in an authentic form, and not from newspaper information. He professed himself to be in the precise situation of the mover, and if called upon to vote without more evidence, should be at a loss to know how to vote. Mr. Dana was against the postponement or the rising of the committee. It was to be recollected that the business had assumed its present shape only in consequence of the zeal of the gentle
Gen. Shepherd thought the best way would be to let the resolutions take their course; they .must be debated sooner or later, and the sooner it was got rid of, the better. He was sorry they had ever been introduced in the house, but as they were, he hoped no postponement would take place.
Mr. Livingston conceived it his duty to answer the observations of the gentleman from Connecticut (Mr. Dana), as to the resolutions being founded upon the facts then before the House. He did not think the facts were precisely sufficient to warrant every idea contained in the resolutions. When the original call for papers was passed by the house, he hoped that something more authentic than newspaper testimony would have been referred to by the executive. and upon that he was called to act, if at all.
“The gentleman had further said that my zeal,” said Mr. L., “and that of my coadjutors,to censure the executive, has brought us into this situation. Who. sir, I would ask the gentlemen are my coadjutors? That gentleman himself was my coadjutor, and every gentleman in ■the house, because the resolution was adopted: the house directed the inquiry and every gentleman must therefore take the burthen in part with me. It was upon the suggestion of the notoriety of the facts that the inquiry was made, and now we are about to enter into the inquiry upon the facts with whieh we are furnished. We never can act but upon the evidence we have to guide that action; if the facts contained in the resolutions cannot be substantiated, if they shall fail to justify the conclusions we mean to draw from them, we certainly cannot be worthy of blame for not possessing more.” “I consider the affidavit yesterday produced,” said Mr. L., “as only supporting one branch of the conclusion that may be drawn from the whole. Whatever gentlemen may think as to the folly or hasty zeal of the resolutions, I can assure them tnat they are the results of many days’ most serious reflection: they were not drawn in haste, and I am' not afraid to say that they can be well substantiated—every fact contained in them. I am sufficiently prepared to proceed, and therefore hope this motion may be negatived, and a calm and deliberate investigation be had. If the deductions I shall make will not be satisfactory, then let it drop: I am, however, well satisfied of their force.” Mr. Craik said that very early in this business he thought the house were entering into it very improperly, either having nothing at all to do with it, or else taking wrong measures; if they had. he thought then, and •was yet of opinion, that if the object was to impeach the president, measures ought to have been taken accordingly. He never did look upon the house of representatives as having either the power to censure or to approbate the conduct of the executive, and therefore equally' disapproved the resolutions of the gentlemen from New York and Delaware; and upon that ground he felt strongly inclined to vote with the gentleman from Kentucky for giving the whole business the go-by, and getting clear of it by any possible means.
The motion being to discharge the committee of the whole from both questions, was giving an opinion upon neither one nor the other, and therefore it could not be received as a censure agreeably to the apprehensions of the gentleman from Virginia, (Mr. Lee.) Mr. C. believed the people of the United States were too wise and too intelligent to form unjust conclusions upon the conduct of the house on this subject. They had the whole subject before them, they could judge, and they had a right to do it, but the house had not, except the avowed object of impeachment, which was not the case; the house had nothing to do with it, and therefore they ought not, in this unnecessary way, spend time upon it. Mr. Harper agreed with gentlemen that it would be folly for the house to spend time in useless discussion, which could lead to no decision, but viewing this resolution as he did, he must conclude it of more importance; he thought it the direct road to an impeachment of the president of the United States, and if so, surely it must be important. The resolution declared in express terms, that the executive had exercised unconstitutional powers, one of the most dangerous crimes he could commit; if he had so exercised his power, the inevitable consequence must be that the president of the United States must be impeached by this house. Then how could any gentleman say this was a trifling question, and one with which the house had nothing to do? Certainly no question can be more important. If, as it respected the motion of the gentleman from Delaware, no motion had been made to criminate the executive, he should not think it right to approbate his conduct; he should, in short, have been of an opinion that the house had nothing to do with it, but it having been, he should consider it very disrespectful not to express a sense of the propriety of the executive conduct. He was willing, nay desirous of meeting the charge with all its terrors, and never should shrink from a decision on it. He presumed gentlemen had a meaning in what they did; and if they had any meaning, it must be that the house ought to proceed against the executive. He did not think, however, from the total evidence which appeared, that there was one idea in the resolution but ought to be scouted with disdain from the house. He wished to have an opportunity of showing to the world that the house disdained to look with unconcern at a serious and unfounded charge upon the executive of the United States. He wished to give an opinion upon these charges, and treat them as they merited. Mr. Rutledge regretted that he could not join with his friend from Maryland (Mr. Craik) in thinking this consideration useless; he believed the attention of the people had been called to view this subject, and they were anxiously looking for a decision in some way. Neither did he think with his honourable friend that the house had nothing to do with it because no impeachment could grow out of it. It was impossible to say what the gentleman meditated in his motions, but one thing was certain: if the gentleman had wished to promote an impeachment, he could not have taken a more direct means for it, if the resolutions could be carried. He thought the friends of the administration would act a very unfriendly part towards the administration if .they should agree to smother the business at this stage. The minds of the people had been raised to the highest pitch of expectation. They had been told, in certain public prints, that it loudly called for the interference of congress; they had also been told so by an hon-ourable member of the other house that congress
Several gentlemen had int>*uated that the authentic evidence, and the whole of the documents were not before the house, and that the executive department was to blame for the deficiency. It appeared that the gentleman himself had forgotten the import of his resolution; it called for such documents as might be in possession of the department of state. Now what could possibly be in possession of that department? The president of the United States had his duties' to perform, and the judge of the district his duties; each had their separate documents, and as neither interfered with the other, therefore it could not be expected to be in the power of the president to furnish the papers belonging to the court of South Carolina, any farther than they came within the joint duties of both. Agreeably to treaty the British consul made a requisition for the person; a copy of this and the several letters and instructions were sent to the house, but it was not in the power of the executive to order the judge to furnish him with a record of the proceedings; he was not bound to furnish it if the president had called for it; but the president had not required it, and no doubt had furnished the house with every paper in his possession. The idea in the resolutions being to criminate the judge as well as the executive, Mr. B. thought he ought to have had an opportunity to furnish the papers of his department, and those could and ought to have been called for before his conduct ought to have been so deeply implicated. Mr. Otis said, when -first the motion was made by the gentleman from Kentucky, he felt for a moment inclined to lean to it; the motives of that gentleman appeared to be so candid and liberal, that, for the moment, Mr. O. confessed, his feelings got the better of his reason. But a short reflection induced him to change an opinion thus hastily formed, and he felt satisfied that to vote with him would be to display, in the conduct of gentlemen who wished to support the administration of the country,- worse than censure. He joined that gentleman in regret that it had gone so far, but certainly it was a subject of the most irritating nature possible—a charge the most serious—a breach of the law by the executive magistrate, who is bound to support it and see it carried into effect—it is certainly a charge of much importance, and however disagreeable it might feel to him, Mr. O. said, he must vote that every argument should be used that could possibly tend to substantiate the charge, that nothing of truth might be hidden.
An insinuation was' thrown out that the president had suppressed part of the information which ought to be had on the business. Lest this should take hold of the minds of gentlemen, he would observe that the president, in his-message, says: “I have directed the secretary of state to lay before me copies of the papers intended, which I now transmit to congress.” If, therefore, there is any blame, it is not attached to the president, but to the department of state; but it does not appear that the secretary of state has any more papers in his possession than those the house are furnished with. This may be inferred from the readiness with which he furnished the papers he has given; he says he has no papers respecting any person of the name of Jonathan’ Robbins; “but, by the proceedings before that judge (Bee), it appears that a seaman named Thomas Nash, the subject of the British minister’s requisition,” &c. He having been, therefore, asked for papers relative to Jonathan Robbins, expressed his willingness by furnishing what he supposed was intended. Mr. Otis said he did not know to what points the evidence required by the gentlemen from New York could apply, except it was to that of his being an American citizen, and of his being impressed. An affidavit was produced to prove these facts, but it would be found from an examination of the documents, that nothing relating to those points was in the office of the department of state, for the date of the affidavit of Robbins is the 25th of July, but the order of the secretary of state bears date the 5th of July, so that no papers as to his claim can be in the possession of that department. Mr. Otis thought that the documents before the house contained everything that was important to the point. Admitting the position gentlemen had taken to be true, which he positively denied, but admitting that the president had given an opinion upon a judicial question, it was only as respected the delivery up of the man which was, in fact, an executive duty; but if the evidence should prove insufficient to support the charge exhibited against the executive or the judge, he was certain that the gentleman from New York would rejoice as much as himself, to find the charges unfounded and the character of those gentlemen beyond blame. Mr. Craik was sorry that gentlemen who advocated this motion should be charged with an opposition to the administration of the government; he believed his conduct had heretofore evinced a different line of conduct. He still denied that the mode taken by the resolution could lead to impeachment. It certainly did contain a very great censure, and one which the house had no authority to inflict. Gentlemen had supported their resolutions upon the ground of the necessity of the various departments being kept distinct, but the very object of the resolution was dereliction of that principle, since it exemplified an interference on the part of the house with a judge of the United
The question was then taken on the motion to discharge the committee of the whole from the further consideration, and negatived: nays, 76; yeas, 14; majority against the motion, 62. Those who voted in the minority were, Messrs. Baily, Condit, Craik, Davis, Dent. Dickson, Freeman, Goode, Grove, Kitchell, Linn, Macon, Pinckney, and S. Smith.
Thursday, Feb. 27th, 1800.
Mr. Davis said, as the house had yesterday thought proper to negative a proposition to discharge the committee of the whole from the farther consideration of the business, and, as one great motive for that motion was the incompetency of evidence before the house, and as he knew it was in the power of the house to procure that evidence by a proper application, he hoped gentlemen would now indulge him in the adoption of the following, which he moved, viz.: “Resolved — that the president of the United States be requested to direct the proper officer to lay before this house a copy of the proceedings of the court held in the district of South Carolina, in the case of Thomas Nash, calling himself Jonathan Robbins.” Mr. Bay-ard said, if he was persuaded, or if the gentleman could convince him that there was any particular evidence in the hands of any officer that would tend to throw such light as to give the least explanation of the case, he certainly would be willing to accord with the resolution; but he believed every necessary fact was before the house, and this had been acknowledged by several gentlemen. If the object was to prove that Nash was an American citizen, and that he was impressed, that could not be necessary as it respected the resolutions of the gentleman from New York, for that gentleman himself had acknowledged that he believed no such thing, but that the whole claim was a falsehood. Would the gentleman then inform the house what point he wished to ascertain, or in what he expected additional proof? He wished information farther: Who was the “proper officer” to whom reference was expected to be made? There are but two officers at all in view, one is the secretary of state, the other is the district judge of South Carolina; the gentleman could not suppose that the judge would be able to transmit the records of that court previous to the adjournment of the house; and if it could be obtained, no evidence to the point could be expected from him. If on the other hand it was meant to call on the secretary of state, it was not to be expected, from the nature of the case, that any more documents were in his hands than those already furnished; he had given copies of the correspondence and requisition, which might be fairly inferred, from the nature of his office, was all of which he could be possessed. But if any gentleman doubted this fact, he could apply at the office of the secretary of state, from whom he could procure whatever was in his possession. If it was the intention of the house to close this very disagreeable business in the present session, they must negative the resolution, and let the discussion go forward. The gentleman who brought forward the resolution ought to have been provided with every document that was necessary to support
One particular piece of testimony had been mentioned, viz: that the man filed an affidavit that he was an American citizen, and he was impressed on a British man-of-war. Could any gentleman pretend to say that no inferences might be drawn from this source and the concomitant facts? The gentleman from New York, to be sure, had declared his satisfaction with the facts that had been produced to the house, but did the gentleman from Delaware know that this was the case with any other gentleman in the house? That gentleman’s conclusions and impressions were not to be taken as the opinions of others, nor were others obliged to be satisfied because he was; and, therefore, to couple others in a measure to which they were not privy, and to ascribe opinions to them which they had not expressed, was at least unfair. Some gentlemen might feel satisfied with what came out since this unfortunate man’s death, but that could be no rule for others. As to this part of the papers, Mr. Nicholas could by no means understand or conceive for what they were collected and sent to the house, except indeed it was to quiet the minds of some gentlemen who thought that the measures of the government were too precipitate, in their having judged the case without proof. That certificates should be collected respecting this man after his death, and when he could not possibly appear to contradict it, or to adduce contrary evidence, was an insult to the common understanding. Suppose this man had claimed to be an American citizen, and the government had known it, he would ask gentlemen how they would justify an act done when no such evidence was known to exist as was now presented from Connecticut. What does it amount to but that there is a chasm in this business which wants to be supplied? It might be supplied to the satisfaction of some gentlemen, Mr. Nicholas said, but it was by no means so to his. Suppose, as was observed before, the certificates had proved the man to be an American, what could gentlemen have then said? From the present state of information, every gentleman must acknowledge it a matter of doubt, and being so, it ought to have been searched into; this doubt might probably be removed by a reference; but the record of the court would prove another thing, and one which the gentleman who moved the resolutions expressed his intention to dwell much upon, that is, whether the judge had caused him to be arrested, and intended him for trial in the circuit court of the United States; and whether the judge had taken upon him to supersede, not his own jurisdiction, but that of the court over which he presided, in the delivery of this man to the British agent. For his part, Mr. Nicholas said, he had no doubt of the jurisdiction of the United States upon this man’s trial, and that it was a departure from justice to deliver him up to a foreign tribunal.
Upon a review of these reasons, he must conclude that more evidence ought to be had, if more evidence could enable the house to make a better investigation, and more was attainable; for, although the gentleman from New York thought the business ripe for discussion, he could not say £¡rwas, and therefore thought it his duty to vote for the motion. Mr. Otis said he should not. for himself have the smallest hesitation, if that resolution pointed to a particular object, or to a particular officer, ■ who might be under the direction of the president, to agree to it. If the gentleman would modify his motion, so that the president of the United States might be directed to instruct the secretary of state, to lay before the house those papers, he should not vote against it. But he thought it his duty to declare that the secretary of state had received no further authentic or other transcript than he had furnished to the house, of the judicial proceedings on this subject. Mr. • O. said he had received this information from the secretary of state in answer to an inquiry of that officer, whether he .had any such documents. But in the present form of the resolution, he could not agree to it. If the motion was adopted, the question would be who was the “proper officer?” Even if it was to be some officer under the direction of the president, the president had already furnished the house with every paper within his power. If the “proper officer” meant, was the judge of South Carolina, Mr. Otis would say that the executive could not with propriety furnish it, because it would be to all intents an interference with the judiciary department. He did not think that the president had any right to demand the documents of that court. He thought the house were fully competent to send to that district judge, ordering him to lay before them all the papers they should think necessary; but then the question should be. were the house ready to consent that the proceeding should be postponed until such an application should be made, or, in short, till the conclusion of the session? Besides, to ask for documents which would be made use of in a way injurious both to the executive and to the judge, was a measure which gentlemen who supported the resolutions of the gentleman of New York, could have no right to expect from gentlemen who could perceive nothing improper in their conduct. If then it be true, of which Mr. Otis thought there could be but little doubt, that the judicial proceedings of that court were never before the executive, whether the judge had done wrong or not, he, and he only, would have to answer, and not the president. The conduct of the president grew out of the proceedings of the court; where, then, could be the propriety or justice of having up the president in effigy, and there suspend him until the next session of congress, subject to the thousand alarms, surmises and reproaches of the people, which must carry with it the whole object of the censure! Every man might have had access to those papers; the judge never would have refused any man a copy of all the proceedings that might
The gentleman from New York, (Mr. Livingston.) Mr. Marshall said, in his opinion, had criminated the conduct of the secretary of state, in supposing that he had withheld some of the documents. The court record was mentioned, but was it to be supposed by the executive that he was to be called upon to furnish papers the property of another department of the government, supposing them material? To procure these papers, he knew was as much in the power of the house as in his power. The house could as well dispatch a messenger as the executive. How was the president then to consider those papers asked for of him? Was he to be a menial to the house in a business wherein himself was seriously charged? Certainly not. There could be no doubt but the executive thought he had fully complied with the request of the house, where he supplied them with those immediately in his power. Mr. Bayard said he could not distinguish between the present motion and one yesterday negatived, because it must act as a discharge upon the committee of the whole house. There could be no doubt but the secretary of state had furnished all the paj>ers relative to the business in his possession; indeed he could assuredly say- so. He said he held in his hand a letter from the secretary of state in answer to one from an honourable member of the house, inquiring whether there were any more documents in his office; he answered that he had no certified copy whatever., but those which he furnished the president with from whom they came to the house. Gentlemen must then perceive that the mere operation of this resolution was an absolute and inevitable postponement of the business till another Bession. Many gentlemen, who were yesterday ashamed to vote for a postponement, would now have a plausible cover for their vote, by calling for additional proof, to accomplish the object of the resolution of yesterday, and thus he feared it would have many advocates; but however specious the pretext, he hoped it would not be carried. Mr. B. then went into an examination of the facts contained in the resolutions of Mr. Livingston, from which he deduced the impossibility of procuring anything that could be material in the prosecution of their discussion, or that could assist the house in drawing their conclusions, except any new facts could be produced, and therefore he concluded that nothing but a postponement could be the issue. ■ He farther contended, in an answer to Mr. Nicholas, that‘it was not competent for the executive to furnish papers the property of the district judge; as well might the house ask for the executive to bring the proceedings on again at their bar. In the impeachment of Blount, Mr. Bayard said, the house did not apply to the president, but appointed a committee to bring the case and all the papers to view relative to it; so it might have been in the present case. And by what authority, taking the subject in another view, could the house call upon that judge to furnish it with papers? The executive had no right to demand them of him, nor had the house. The power of the judiciary is co-ordinate with the power of the house; it is a distinct branch of the government. He would have precisely Ihe same right to call authoritatively for a copy of the journals of the house, as the house would to call upon1 him for copies of his record; his proceedings are public, his records are open to view; so are our journals; we cannot call upon him for them, though we may obtain them py paying the clerk for a copy of them, as any individual might do.
The gentleman from Maryland (Mr. Smith)had considered the notarial certificate of New York, in attestation of Nash or Bobbins’s citizenship, to be important. If that gentleman thought this a material document, Mr. Bayard said he did not, but he thought the observation very material, as it might have an improper-impression on the minds of some gentlemen. What could be more easy than for this Thomas Nash, this perjured pirate and murderer, to-, have got a certificate, either when he murdered some man from whom he might have procured it, or by purchase or favour? But there were-facts before the house, that this man was an Irishman, that his name was Nash, and not Bobbins; that it was never issued to him. and he was never entitled to it. What farther theu can be wanted? Will not this satisfy gentlemen? The next thing will be. that if this objection be admitted, we shall be called upon to send to the West Indies to prove that his name-was Nash. Mr. B. said, he was well satisfied that when this subject came to be analyzed, it would be made to appear perfectly clear, that the whole of the evidence necessary was before-the house, and it only would be most annoying,- and producing extremely injurious consequences,- to grant the motion. Mr. Butledge conceived this motion to be the same as to postpone the business. Further information was wanted, and that information could alone come from South Carolina. He wished the gentleman of Kentucky would read the resolution before he pressed his motion; he would find that the district judge was not charged; no, it was only a charge against the executive; there-
Mr. Nicholson rose to correct what he considered a mistake in the gentleman last up (Mr. Rutledgel when he said that the executive only was implicated in the resolutions; he conceived that the district judge of South Carolina was implicated, and that the papers of that court were necessary to examine the conduct of that judge. He read the resolution, and contended his deduction was accurate. Mr. N. said he wanted to know whether the district judge of South Carolina had committed this man for trial; this would appear, or be disproved by the warrant. Mr. N. said he could not believe the position laid down by a gentleman (Mr. Dana) that it was utterly impossible that Jonathan Robbins should have been a citizen of the United States. It was worthy of notice that the notarial certificate which the unfortunate man produced in court was dated 1795—the opposite authority to wit, a copy of the books of the Hermione appears to state that Thomas Nash was transferred to that ship in 1792, he, therefore, wanted to know authoritatively, whether this certificate was produced to the court, for if it was produced, it certainly went to prove that the copy of the books of the Hermione was erroneous, because if this man was in New York in Í795, he could not have been on board a British frigate in 1792, and have continued there until the time of the mutiny. That the president of the United States was not to be considered the servant of that house, he was willing to admit, but he thought that the president might with propriety apply to the judge of the district for the documents of the court. And he did not believe that the president would object to make the application. However, the object, he presumed, was to procure the papers, no matter from whom: that being the object, he hoped that the mover of the resolution would withdraw it in order to accommodate it more to the feelings of some members in the house, by adopting something like the following: Resolved, that the speaker of the house of representatives be requested to procure from the clerk of the district court of South Carolina, copies under seal of the proceedings of that court, together with the evidence produced in the casé relative to the requisition for Thomas Nash, alias Jonathan Robbins, who was delivered to his Britannic majesty’s consul. Mr. Davis withdrew his resolution, and Mr. Nicholas moved the substitute, which was now before the house. Mr. Harper moved a postponement of the resolution for one week. The object of the resolution which was before the committee of the whole was twofold.—a charge on the president, and a charge' on the district judge. As to so much as related to the president of the United States, it was manifest that the testimony called for by this resolution could have no effect whatever upon him. because he left -the whole to the judge. The president went no farther than to declare that if it should appear, that the acts committed by this man came within the purview of the British treaty, the man ought to be delivered up conformably to that stipulation.
It must be manifest that the testimony to be expected from South Carolina could have no possible effect on the part relating to the president, and therefore the house could proceed with that part of the resolution; but whether the judge, in executing the duty belonging to him, acted with propriety or not, might be more clear from the documents of that court. When the judge entered into the consideration of this business, what questions were open to him? The principle was. whether the man was guilty of the piracy and murder charged to him or not; if this was proved, no further question could arise as to the propriety of delivering him up conformably to the requisition. The consequence of these papers being called for, had been stated to be much delay; it would operate so. “Was it not an established principle,” Mr. Harper asked, “that a delay of justice amounted to a denial of justice? If you suffer this charge to hang over the head of your president for eight months for no purpose, you inflict a punishment extremely severe. A charge is here exhibited against the first magistrate of the Union which must be considered as the commencement of an impeachment, for if gentlemen have any propriety of conduct, this must operate as a foundation to impeachment. This is to keep alive the idea of guilt.
With respect to the objections on the ground of postponement, Mr. Gallatin would observe, that tjie motion of the gentleman from South Carolina proved that this was not the proper time to proceed in the discussion: the motion implied that gentleman’s acknowledgment of it, or he would rather have at once rejected the motion than moved its postponement for a week. He therefore presumed that gentleman thought additional testimony necessary. Mr. Harper had said .that neither the testimony to be expected, nor the - postponement could have any possible bearing on the part relating to the president, and therefore that ought to be decided; but as far as related to the judge, evidence might be necessary. Taking this to be the mind of the gentleman, Mr. Gallatin said, he did not know in- what' manner he could apply his argument to the motion. For himself, Mr. G. said, he was ready to vote on the resolutions without more documents; but as other gentlemen were not, he should not vote without them. He confessed he was the more earnest in this, because on the very threshold of the business a gentleman was stopped while reading a paper he thought useful to bring forward. Gentlemen had now got up and declared themselves compelled to call tor evidence which might substantiate a fact contained in that paper, which, though known to be true, was not stamped with that legal credit that was necessary. Let .gentlemen then come forward at once and- give this fact its legal importance, or prove its non-existence.
Another fact stated was, that the president had undertaken to discharge the man, when the court had already assumed jurisdiction of the case. This it was possible to prove or disprove by the record of the court. That this record, agreeable to law, was to contain the name of the court before which the case whs triable, and process upon which the man was arrested, he quoted the judiciary act. 1 Stat. 73. He was, however, well satisfied from the letter of the judge and the nature of the case, that this man was committed for trial before a court of the United States, and what corroborated the opinion was that no power was given by our laws to hold a man in prison on any other ground. On the whole, Mr. G. said, as one fact had been, and others might be, disputed, -if produced, it would perhaps be the most expeditious, as it certainly would be the most satisfactory method to procure every fact authentically attested before the proceeding was had. General Lee hoped that the gentleman
If the view of gentlemen was to postpone the whole of this business, until a return from South Carolina, he would ask the gentleman from New York, and his friends, whether they could wish any means to be adopted more completely to effect the object of the resolutions than by postponement? “Were I the high character,” said Mr. Lee, “to whom this resolution refers, I would infinitely rather have the disapprobation of this house to the full extent which the censure goes, than to have the subject postponed and exposed to the conclusions and surmises of the world. I will not attribute to gentlemen that which the gentleman from South Carolina has expressed; I cannot think the member from New York wishes to suspend the decision of this house until that high character shall be before that tribunal which is to estimate his merits or demerits, for knowing that no baser motive can be cherished, I will not even suspect it of him; but whatever may be the motive which may induce a postponement, it cannot fail of having that effect.” He therefore wished to proceed as it respected the president. Mr. Dana acknowledged his very high sense of the opinion of the gentleman last up; but he could not agree with him at ■present: he did not think it would consist with general justice to delay the case for the time contemplated by the resolution; he well knew that if the inquiry was not made,- gentlemen would talk about liberality and about motives, but that he should not in the least regard, assured that his conduct would be guided by the strictest rules of legal propriety and justice. Mr. D. could not admit that much propriety marked the conduct of the gentleman from Maryland (Mr. Nicholson); that gentleman well knew that the executive ought not to be called upon, and that the speaker of the house was the true medium by which evidence could be obtained for that house, but as the argument was in favour of a complete investigation of the business, Mr. D. could not help calling to the recollections of gentlemen a motion (which was negatived) to put this previous examination in the hands of a select committee; for want of that very necessary measure, gentlemen now found themselves in a disagreeable situation, for. having accused these officers, they could not prosecute their accusation as they wished, and therefore they would fain make further inquiry. He objected, farther, to it because it was unnecessary; he did not believe the least good could spring from it. But it was extremely unreasonable, and highly unbecoming the dignified character of grand inquisitors general, because there was no proof to make the charge appear, that they should suspend the business while gentlemen sought for proof which they ought to have known when the :resolutions were proposed. which they ought by no means to have brought upon slight grounds. Did the gentleman know that public officers professed reputa-tation; and that the preservation of that reputation was essential to preserve public confidence in them? He would not stretch a man on the bed of torture, for time unknown, while he searched for proof of a supposed crime. “Sir,” said Mr. D., “by this treatment you chain your public officers to a rock, for this spirit of patriotism, like a vulture, to prey on theirhearts. This is conduct I abhor, and therefore cannot, for my parr, indulge it. Sir, they have brought the charge; we are willing to meet it—we are willing to give full weight to their charge-we are not disposed to vindicate the executive, or any other public officer, if doing wrong—but it is because we respect honest men in public stations, that we are prepared to hear what the tongue of accusation can produce; we are unwilling to leave them exposed to calumny, as they must be unheard and unjustified except it be by clamour, which a suspicion must inevitably raise.” Mr. Yarnum would vote for the resolution proposed; he thought it was doubtful whether the president had acted with propriety or not, but he believed if there had been any incidental impropriety of conduct it never was done with an evil design, or with a view to interfere with any other department of the government: but certainly to deny this evidence, which several gentlemen stated to be necessary to assist them in making up their minds, would stamp a censure on the conduct of those officers as great as that contained in the resolution. He thought that the gentleman from New York had a right to bring the subject to the view of the house; if he saw any proceeding which to him appeared to be dangerous, it was his duty to commence an investigation; no man ought to flinch from what he thought right. The only way to give public satisfaction, in a matter that had given so much public attention, was to give all the evidence which could be procured, and let the matter be investigated to the bottom; and most assuredly the only way effectually to clear the characters implicated, if they were innocent, was to leave no doubt as to the desire of the house to scrutinize their conduct. But certainly the very great reluctance which gentlemen showed to procure all the evidence, and after all their denial of it, must leave a suspicion much bordering on guilt. Mr. Bayard rose, in answer to Mr. Gallatin and others, and observed that with respect to Nash calling himself an American citizen before that court, an object which it was desired to prove by this call for evidence, they were asked to admit the fact. Mr. B. asked, would those gentlemen admit that Nash was guilty of the dreadful murders committed on board the British frigate; would they admit that he falsely made the claim? However, he had no disposition to rest on that point. Another fact, however, which it was required to admit was as to the jurisdiction of the court of the United States upon the case. Mr. B. denied this, and repeated the former arguments in proof of his opinion. He insisted that the whole arrest and proceeding were had at the instance of the British consul and minister, in proof of which he quoted their letters. The record, he said, could not possibly dispense any light to this fact; the record would only give the warrant and some of the deno-sitions first taken before the judge; but as to the court being designated where the cause was to be tried, he contended that it was not usual to insert it on the warrant, he never saw one so drawn. It was possible that Nash was committed with a view to be delivered up to the British, before the letter was received by the judge from the president, and it was very reasonable to suppose that the whole previous business was at the instigation of the British agent; but it was impossible to prove that jurisdiction had attached before the letter directing the delivery to be made was received. Mr.
The question was then taken, on the motion of Mr. Harper, to postpone the consideration of the motion of Mr. Nicholson for a call of the record of the court of South Carolina, for one week, and negatived': yeas, 63; nays, 32.
Monday, March 3d.
The house having resolved itself into committee, Mr. Edmond in the chair, on the resolution proposed by Mr. Livingston and M. Bay-ard—the resolution of Mr. Livingston being first in order. Mr. Edmond said he almost ceased to wonder at anything done on that floor. If the intentions of gentlemen were to lay the foundation of another inquiry, which should bring the past conduct of the president to view, perhaps this motion might then be proper; but calling for papers relative to another transaction and not included in the original resolutions, was unaccountable, except it was to lay the foundation of an impeachment of the president; and if ever that was the view, the house ought first to get rid of these troublesome resolutions. He knew it was very easy for gentlemen to get up and call for this and that testimony; and if they did not receive it to make a handle of the refusal by saying that the evidence was precluded; but, Mr. Edmond said, such excuses would not in the least affect his vote. Suppose the papers in question were obtained, he could perceive no possible application they would have to the present case; for if the president was wrong in what he did. concerning Johnson (or Brigstock), that would not prove him wrong or right in his conduct respecting Nash. The facts respecting Robbins for Nash), were only now before the house in the resolutions, and no other case ought to be brought to confound it. Suppose this was admitted. if the gentleman should still find himself deficient in his testimony to support the resolutions, he might want the house to send for more testimony from some other parts. This kind of conduct must take up unnecessary time where a decision was very necessary to be come to. He hoped the motion would be negatived. Mr. Macon confessed he was astonished at the conduct he had seen exemplified in the house: it appeared to him that gentlemen were making every possible excuse to prevent that information coming before the house which the friends of the resolution said they wanted. If, Mr. M. said, he was desirous of injuring the reputation of the president, (and that he declared he was not.) he should think himself facilitating that desire by throwing every embarrassment in the way, and refusing every sort of information on the subject: this conduct would effectually tell the public that the truth •dare not be seen; that the facts are too bad to be seen. He could not think it was any great mark of friendship to the president to give rise to such conjectures as the people must and would form by the door to investigation into his conduct being stopped. In his opinion, Mr. M. said, this seclusion of the facts went to prove that the opinion of the president, or his conduct in the New Jersey case, was right, and to reveal them would amount to an evidence that the latter was wrong with respect to Nash. If it was otherwise, the papers asked for would speak for themselves; it certainly would have a very suspicious appearance to refuse the papers which were declared by several gentlemen to be important to their forming a decision. Mr. M. wished to have got rid of this business altogether, but as it must be examined, he wished it to be done with all the evidence possible. If there were gentlemen who were enemies to the president, he declared he was not one; he desired to do him justice, which he thought could not be done by hiding any part of his conduct which was open to suspicion. If the president had changed his opinion, give him an opportunity to show that he had acted right. If the papers should prove to be of no use in the present investigation, he could see no harm that could accrue from them. Mr. Shepherd hoped the resolution never would be permitted to go on the journals of the house, because it must lead to inquiry. The object he believed only to be delay. He thought when the resolution was first admitted, in having anything to do with the business, the house committed a very great error, but because the house had committed one blunder, was that any reason they should go on blundering? He hoped the house would get rid of this business with all possible expedition. Mr. Livingston said, if he were really a personal enemy to the president, he should rejoice at such a motion as this being opposed; he thought it a very inconsistent part of the conduct of those gentlemen who called themselves exclusive friends of the president; those gentlemen who boasted of giving up their personal ease in the service of their country in contradistinction to those gentlemen of opposite political opinions, with whom they disdained to be seen in their patriotic labours. His bitterest enemies would not wish to place him in a more undignified situation. What inference can be drawn by the people of the United States, but that there is something rotten in the business, and that will bear too hard on the conduct of the president to be made appear; that he had done in the case of Nash without consideration very differently from what he did in the case of Brigstock, after mature consideration? “It had appeared, in the course of his business.” Mr. L. said, “that some gentlemen in the house had been in the habit of corresponding with the department of state on the case of Robbins; might it not be inferred from their subsequent conduct that they had discovered something which they did not choose to have exposed? Whether this was a fair inference or not, it would certainly be made.”
“The wretched argument with which this opposition was supported/’ Mr. L. said, “was almost extraordinary, and would be quite so, could it be supported on better grounds. The distinction of the cases when no perceptible distinction exists—the time that it would waste, when a few hours could procure all that was asked, and above all the miserable excuse of trouble to the clerks in the secretary’s office, were too futile for gentlemen to suppose they could palm them upon the public. But miserable as they are, it is a convincing proof that no better are to be found, and these are their last resort.” To suppose that no correspondence took place would be an absurdity, and equally so would it be, to harbour the opinion which gentlemen had desired to establish, that it could throw no light upon the present subject if it did appear. Gentlemen had actually presumed to say that these cases were not the same; but what gentlemen had pretended to draw a shade of distinction? It was impossible, and nothing was wanted to prove this fact but a slight examination of the two cases. “If they are the same,” said Mr. L., “’tis impossible to suppose the conduct of the executive in respect to this one was right; and tne proceedings of the court thereupon will not be laid down as
Mr. Harper explained, that he said the documents did not discover any requisition having been made in the Jersey case. And further, instead of positively saying the jury had acquitted for want of jurisdiction, he said it was presumed so. Mr. Smilie said there was another fact stated by the gentleman which was incorrect He said the figure of J. R. was hung up at every election ground. This was not truth; for Mr. S. said he was at one election where it was not hung up. (Several other gentlemen also declared that they saw no such thing at their respective districts, but they heard of it in some few places.) One extraordinary feature, Mr. Smilie observed, was easily perceived throughout the whole of this attempt to investigate facts. It appeared that gentlemen were determined to exculpate the president at all events. He was not ready to do so; nor was he ready to accuse him; he only wished to do what was right and lawful; for which purpose he wished every document that could assist him. It was strange that, while there were papers which, it was said, would make the whole of the executive conduct appear fre.e of blame, the friends of the executive should repress them. How could gentlemen say they
Thursday, March 4th.
Mr. - Gallatin presented to the house the following resolution: “Resolved, that the president of the United States be requested to cause to be laid before this house, copies of any requisition, or any application that may have been made by the British minister, or any agent of his Britannic majesty, for or concerning the delivery up of Wm, Brigstock, otherwise John Johnson, of John Evans, otherwise Michael Campbel, and of Johannes Williams, otherwise Johannes Williamson, or either of them who were tried at the circuit court of the United States, in the New Jersey district, on a charge of piracy, committed on board the British frigate Hermione; and also copies of any communication in the executive department, or any other of the departments relative thereto.” Mr. Nicholas, yesterday, just before the rising of the house, mentioned the necessity of this inquiry, but the house adjourned before a motion was made to that effect. Some conversation occurred as to the disposal of this motion. Mr. Bayard hoped the resolution would follow the usual course, and lie on the table for a day. If the idea was to connect the case with that of Nash, ox to bring more evidence to the present case, he thought it must fail of its object. It was impossible, he said, that the decision on that case could be the least guide to the house in the present, as it was a very distinct trial, and therefore, he hoped it would lie. Mr. Livingston hoped the resolution would not lie on the table till another day, and for
Mr Marshall (whose speech, as given in a note to Bee’s reports. 266, was written out by himself, which is said by Judge Story to be among the very ablest arguments on record, and is even admitted by the Aurora to have .
The American government has, on a very solemn occasion, avowed the same principle. The first minister of the French republic asserted and exercised powers of so extraordinary a nature, as unavoidably to produce a controversy with the United States. The situation in which the government then found itself was such as necessarily to occasion a very serious and mature consideration of the opinions it should adept. Of consequence, the opinions then declared deserve great respect. In the case alluded to, Mr. Genet had asserted the right of fitting out privateers in the American ports, and of manning them with American citizens in order to cruise against nations with whom America wis at peace. In reasoning against this extravagant claim, the then secretary of state, in his letter of the 17th of June, 1793, says: “For our citizens then to commit murders and depredations on the members of nations at peace with us, or to combine to do it, appeared to the executive, and to those whom they consulted, as much against the laws of the land as to murder or rob, or combine to murder or rob its own citizens; and as much to require punishment, if done within their limits, where they have a territorial jurisdiction, or on the high seas, where they have a personal jurisdiction, tnat is to say. one which reaches their own citizens only; this being an appropriate part of each nation, on an element where all have a common jurisdiction.” The well considered opinion, then, of the American government, on this subject, is that the jurisdiction of a nation at sea is “personal.” reaching its “own citizens only;” and that this is the “appropriate part of each nation” on that element.
The amount of these cases is, that no new of-fence is made piracy by the statutes; but that a different tribunal is created for their trial, which is guided by a different rule from that which governed previous to those statutes. Therefore, on an indictment for piracy, it is still necessary to prove an offence which was piracy before the statutes. He drew from these authorities a very different conclusion from that which had been drawn by his colleague. To show the correctness of his conclusion, it was necessary to observe, that the statute did not indeed change the nature of piracy, since it only transferred the trial of the crime to a different tribunal where different rules of decision prevailed; but having done this, other crimes committed on the high seas, which were not piracy, were made punishable by the same tribunal; hut certainly this municipal regulation could not be considered as proving that those offences were, before, piracy by the law of nations. (Mr. Nicholas insisted that the law was not correctly stated, whereupon Mr. Marshall called for 3 Inst, and read the statute:) “All treasons, felonies, robberies, murders, and confederacies, committed in or upon the seas,” &c., “shall be inquired, tried, heard, determined and judged in such shires,” &c. “in like form and condition as if any such offence had been committed on the land,” &c. “And such as shail be convicted,” &c., “shall have and suffer such pains of death,” &c., “as if they had been attainted of any treason, felony, robbery, or other the said offences done upon the land.” This statute, it is certain, does not change the nature of piracy; but all treasons, felonies, robberies, murders and confederacies committed in or upon the sea, are not declared to have been, nor are they piracies. If a man be indicted as a pirate, the offence must be shown to have been piracy before the statute; but if he be indicted for treason, felony, robbery, murder, or confederacy, committed at sea, whether such offence was or was not a piracy, he shall he punished,in like manner as if he had committed the same offence on land. The passage cited from 1 Woodeson, 140. is a full authority to this point. Having stated that offences committed at sea were formerly, triable before the lord high admiral, according to the course of the Roman civil law, Woodeson says: “But. by the statutes 27 Hen. VIII,, c. 4, and 28 Hen. VIII., c. 15. all treasons, felonies, piracies and other crimes committed on the sea, or where the admiral has jurisdiction, shall he tried in the realm as if done on land. But the statutes referred to affect only the manner of the trial so far as respects piracy. The nature of the offence is not changed. Whether a charge amount to piracy or not, must still depend cn the law of nations, except
The gentleman from Pennsylvania (Mr. Gal-latin) abandons, and very properly abandons, this untenable ground. He admits that no nation has a right to punish offences against another nation, and that the United States can only punish offences against their own laws and the law of nations. He admits, too, that if there had only been a mutiny (and consequently if there had only been a murder) on board the Hermione, that the American courts could have taken no cognizance of the crime. Yet mutiny is punishable as piracy by the law of both nations. That gentleman contends that the act committed by Nash was piracy, according to the law of nations. He supports his position by insisting that the offence may be constituted by the commission of a single act; that unauthorized robbery on the high seas is this act, and that the crew having seized the vessel, and being out of the protection of any nation, were pirates. It is true that the offence may be completed by a single act; but it depends on the nature of that act. If it be such as manifests generally hostility against the world—an intention to rob generally, then it is piracy; but if it be merely a mutiny and murder in a vessel, for the purpose of delivering it up to the enemy, it seems to be an offence against a single nation and not to be piracy. The sole object of the crew might be to go over to the enemy, or to free themselves from the tyranny experienced on board a ship of war, and not to rob generally. But. should it even be true that running away with a vessel to deliver her up to an enemy was an act of general piracy, punishable by all nations, yet the mutiny and murder were a distinct offence. Had the attempt to seize the vessel failed, after the commission of the murder, then, according to the argument of the gentleman from Pennsylvania, the American courts could have taken no cognizance of the crime. Whatever then might have been the law respecting the piracy, of the murder there was no jurisdiction. For the murder, not the piracy, Nash was delivered up. Murder and not piracy, is comprehended in the 27th article of the treaty between the two nations. Had he been tried then and acquitted on an indictment for the piracy, he must still have been delivered up for the murder. of which the court could have no jurisdiction. It is certain that an acquittal of the' piracy would not have discharged the murder; and. therefore, in the so much relied on trials at Trenton, a separate indictment for murder was filed after an indictment for piracy. Since, then, if acquitted for piracy, he must have been delivered to the British government on the charge of murder, the president of the United States might, very properly, without prosecuting for the piracy, direct him to be delivered up on the murder.
All the gentlemen who have spoken in support of the resolutions, have contended that the case of Thomas Nash is within the purview of the act of congress, which relates to this subject. and is by that act made punishable in the American courts. That is, that the act of congress designed to punish crimes committed on board a British frigate. Nothing can be more completely demonstrable than the untruth of this proposition. It has already been shown that the legislative jurisdiction of a nation extends only to its own territory, and to its own citizens,, wherever they may be. Any general expression in a legislative act must, necessarily, be restrained to objects within the jurisdiction of the legislature passing the act. Of consequence an act of congress can only be construed to apply to the territory of the United States, comprehending every person within it and to the citizens of the United States. But, independent of this undeniable truth, the act itself affords complete testimony of its intention and extent. See 1 Laws U. S. p. 10 [1 Stat. 112], The title is: “An act for the punishment of certain crimes against the United States.” Not against Britain, France or the world, but singly “against the United States.” The first section relates to treason, and its objects are, “any person or persons owing allegiance to the United States.” This description comprehends only the citizens of the United States, and such others as may be on its territory or in its service. The second section relates to misprision of treason; and declares, without limitation, that any person or persons, having knowledge of any treason, and not communicating the same, shall be guilty of that crime. Here then is an instance of that limited description of persons in one section, and of that, general description in another, which has been, relied on to support the construction contended for by the friends of the resolutions. But will it be pretended that a person can commit misprision of treason who cannot commit treason itself? That he would be punishable for concealing a treason who could not be punished for plotting it? Or, can it be supposed that the act designed to punish an Englishman or a Frenchman, who, residing in his own country, should have knowledge of treasons against the United States, and should not cross the Atlantic to reveal them? The same observations apply to the sixth section, which makes any “person or persons” guilty of misprision of felony, who, having knowledge of murder or other of-fences enumerated in that section, should conceal them. It is impossible to apply this to a foreigner, in a foreign land, or to any person not owing allegiance to the United States. The eighth section, which is supposed to comprehend the ease, after declaring that if any “person or persons” shall commit murder on the high seas, he shall be punishable with death, proceeds to say, that if any captain or mariner shall piratically run away with a ship or vessel, or yield her up voluntarily to a pirate, or if any seaman shall lay violent hands on his commander, to prevent his fighting, or shall make a revolt in the ship, every such offender shall be adjudged a pirate and a felon. The persons who are the objects of this section of the act are all described in general terms, which might embrace the subjects of all nations. But is it to be supposed that if in an engagement .between an English and a French ship of war, the crew cf the one or the other should lay violent hands on the captain and force him to strike, that this would be an offence against the act of congress, punishable in the courts of the United States? On this extended construction of the general terms of the section, riot only the crew of one of the foreign vessels forcing their captain to surrender to another would incur the penalties of the act, but if in the late action between the gallant Truxton and the French frigate, the crew of that frigate had compelled the captain to surrender, while he was unwilling to do so, they would have been indictable as felons in the courts of the United States. But surely the act of congress admits of no such extravagant construction. His colleague, Mr. Marshall said, had cited and particularly relied cn the ninth section of the act; that section declares that if a citizen shall com
The gentleman from New York has cited 2 Wood. El. Jur. 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 be-comé 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. It would be assuming a very extraordinary principle indeed, to say that words inserted in an indictment for the express purpose of assuming the jurisdiction of a court, should be admitted to prove that jurisdiction. The question certainly depended 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 the persons to have been within the peace, and murder to have been committed against the peace of the United States. These are necessary 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 die 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 Mr. Marshall said led to his second proposition, which was: That the case was a case for executive and not judicial decision. He admitted implicitly the division of powers, stated by the gentleman from New York, and that it was the duty of each department to resist the encroachments of the others. This being established, the inquiry was, to what department was the power in question allotted? The gentleman from New I'ork had 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 he examined that section, it would 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 and equity, arising under the constitution, laws and treaties of the United States; but the resolutions de-ciare that judicial power to extend to all questions arising under the o institution, treaties and laws of the United Stares. The difference between the constitution and the resolutions was material and apparent. A case in law or equity was a term well understood, and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the judicial power extended to every question under the constitution, it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States, it would involve almost every subject on which the executive could act. The division of power which the gentleman had stated could exist no longer, and the other departments would be swallowed up by the judiciary. But it was apparent that the resolutions had essentially misrepresented the constitution. He did not charge the gentleman from New York with intentional misrepresentation; he would not attribute to him such an artifice in any case, much less in a case where detection was so easy, and so certain. Yet this substantial departure from the constitution, in resolutions affecting substantially to unite it, was not less worthy of remark for being unintentional. It manifested the course of reasoning by which the gentleman had 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 had 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. 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 oth
The consular convention with France, has also been relied on. as proving the act of delivering up an individual to a foreign power to 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 to be performed in the same manner. It is said that the then president of the United States declared the incompetency of the courts, judges and officers to execute this contract without an act of the legislature. But the then president made no such declaration. 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.
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 S+ates, 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 encomium 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 notv 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 36th of August, 1793, to Mr. Morris. In the letter to Mr. Genet, the secretary says, that the claimant having filed his libel against the ship William, in the court of admiralty, there was no power which could take the vessel 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 executive opinion, that the case was not a case for executive decision. The contrary is clearly avowed. It is true, that when an individual, claiming the property as his, had asserted that 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 decide upon the case, if, instead of being cftrried before a court as an individual claim, it is brought before the executive as a national demand. A private suit instituted by an individual, asserting his claim to property, can only be controlled by that in-dividual. The executive can give no' direction concerning it. But a public prosecution carried on in the name of the United States can, without impropriety, be dismissed at the will of the government. The opinion, therefore, given in this letter, is unquestionably correct;
Having noticed the particular letters cited by the gentleman trom New York, “permit me now.” said Mr. Marshall, “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 June, 1793. In that letter, the secretary states a consultation between himself and the secretaries of the treasury and war, (the president being absent,) in which (so well were they assured of the president’s way of thinking in those eases), it was determined that the vessels should be detained in the custody of the consuls, in the ports, until the government of the United States shall be able to inquire into and decide on the fact. In his letter of the 12th of July, 1793. the secretary writes: The president has determined to refer the questions concerning prizes “to persons learned in the laws,” and he requests that certain vessels enumerated in the letter should not depart “until his ultimate determination shall be made known.” In his letter of the 7th of August, 1793, the secretary informs Mr. Genet that the president considers the United States as bound “to effectuate 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.” 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 prevent 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 Lcvely Lass, and the brig Prince Wm. 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 giver, 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 more respect. because the government of the United States was then so circumstanced as to assure us, that no opinion was lightly taken up, and no resolution formed but on mature consideration. This decision, quoted as a precedent 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 eonstitutipn 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 ease, 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.
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 was, not how his crime should be tried and punished, but whether he should be delivered up to a foreign tribunal which was alone capable of trying 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 tria-
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. It is true, sir, these points of law must have occurred, and must have been decided: but it by no means follows that they could only have been decided in court. A variety of legal questions must present themselves in the performance of every part of executive duty, but these questions are not therefore to be decided in court. Whether a patent for land shall issue or not is always a question of law, but not a question which must necessarily be carried into court. The gentleman from Pennsylvania seems to have permitted himself to have been misled by the misrepresentation of the constitution made in the resolutions of the gentleman from New York; and, in consequence of being so misled, his observations have the appearance of endeavoring to fit the constitution to his arguments, instead of adapting his arguments to the constitution. When the gentleman has proved that these are questions of law, and that they mnit 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 fcederis of the guaranty was a question of law, but no man eould have hazarded the opinion that such a question must be carried into court, and can only be there decided. So the casus fcederis. 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 foeder-is of the twenty-seventh article had occurred, so that his delivery ought to be demanded, would be a question of law, but no man would say it was a question which ought to be decided in the courts. When, therefore, the gentleman from Pennsylvania has established, that in delivering up Thomas Nash, points of law were decided by the president, he has established a position which in no degree whatever aids his argument. The case was in its nature a national demand made upon the nation. The parties were the two nations. They cannot, come into court to litigate their claims, nor can a court decide on them. Of consequence the demand is not a case for judicial cognizance. The president is the sole organ of the nation in its external relations, and its sole 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. He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he. and he alone, possesses the means of executing it. The treaty,/which is a law, enjoins tbe performance of a particular object. The person, who is to perform this object, is marked out by the constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. 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 ot 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 thiB be done, it seems the duty of the executive department to execute the contract by any means it possesses. The gentleman from Pennsylvania contends, that, ■ although this should be properly an executive duty, yet it cannot be performed until congress shall direct the mode of performance. He says that, although the jurisdiction of the courts is extended by the constitution to all cases of admiralty and maritime jurisdiction, yet if the courts had been created without any express assignment of jurisdiction, they could not' have taken cognizance of eases 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 entrusted 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
It remains to inquire whether, m exercising this power, and in performing the duty it enjoins, the president has committed an unauthorized and dangerous interference with judicial decisions. That Thomas Nash was committed originally at the instance of the British consul at Charleston, not for trial in the American courts, but for the purpose of being delivered up to justice in conformity with the treaty between the two nations, has been already so ably argued by the gentleman from Delaware, that nothing further can be added to that point. He would, therefore, Hr. Marshall said, 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 had considered it as an offence against judicial authority, and a violation of judicial rights to withdraw from their sentence a criminal against whom a prosecution had been commenced. They had treated the subject as if it was the privilege of courts to condemn to death the guilty wretch arraigned at their bar. and that to intercept the judgment was to violate the privilege. Nothing can be more incorrect than this view of the case. It is not the privilege, it is the sad duty of courts to administer criminal judgment. It is a duty to be performed at the demand of the nation, and with which the nation has a right to dispense. If judgment of death is to be pronounced, it must be at the prosecution of the nation, and the nation may at will stop that prosecution. In this respect the president expresses constitutionally the will of the nation; and may rightfully, as was done in the case at Trenton, enter a nolle prosequi, or direct that the criminal be prosecuted no further. This is no interference with judicial decisions, nor any invasion of the province of a court. It is the •exercise of an indubitable and a constitutional power. Had. the president directed the judge 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 would state it, the fact cannot avail them. It is to be remembered, too, that in the case stated to the president, the judge himself appears to have considered it as proper for executive decision, and to have wished that decision. The president and judge seem to have entertained, on this subject, the same opinion, and in consequence of the opinion of the judge, the application was made to the president.
It has then been demonstrated; (1) 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; (2) that this question was proper for executive, and not for judicial decision; and (3) that in deciding it, the president is not chargeable with an interference with judicial decisions. After trespassing so long, Mr. Marshall said, on the patience -of the house, in arguing what had appeared to him to be the material points growing out of the resolutions, he regretted the necessity of detaining them still longer for the purpose of noticing an observation which appeared not to be considered by the gentleman who made it as belonging to the argument. The subject introduced by this observation, however, was so calculated to interest the public feelings, thai he must be excused for stating his opinion on it The gentleman from Pennsylvania had 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, Mr. Marshall said, he concurred entirely with that gentleman. He believed the opinion to be unquestionably correct, as were the reasons that gentleman had given in support of it. He had never heard any American avow a contrary sentiment, nor did he believe a contrary sentiment could find a place in tbe bosom of any American. He could not pretend, and did not pretend to know the opinion of the executive on the subject, because he had never heard the opinions of that department; but he felt 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. This belief was in no degree shaken by the conduct of the executive in this particular case. In his own mind, it was a sufficient defence of the president from an imputation of this kind, that the fact of Thomas Nash being an impressed American was obviously not contemplated by him in the decision he made on the principles of the case. Consequently, if s 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
Saturday, March 8. The only business which occupied the house was the unfinished business of Friday, on the question to agree with the committee of the whole in their disagreement with the resolution proposed by Mr. Livingston on the case of Jonathan Robbins. Mr. Nicholas spoke in answer to Mr. Marshall; immediately after which the question of agreement with the reported disagreement was taken by yeas and nays, as follows: Yeas. Messrs. Bartlett, Bajara, Bird, J. Brown, Cooper, Craik. J. Davenport. Davis, Dennis, Dent, Dickson, Edmond, Evans. A. Foster. D. Foster, Freeman, Glen, Goode, C. Goodrich, Gordon, Gray, Griswold, Groves, Harper, Henderson, Hill, Imlay, Jones, Kittera, H. Lee. S. Lee, Lyman, Linn, Marshall, Nott, Otis, Page, Parker,. Pinckney. Platt, Powell. Reed, Rutledge, Sewell, Sheafe, Sheppard, Spaight, Stone, Taliafero, Thatcher, J. C. Thomas, R. Thomas, Wadsworth, Wain. L. Williams, Varnum. Woods. 61. Nays. Messrs. Baily, Bishop, R. Brown. Cabel, Christee, Clay, Conduit, Eggleston, Elmendorf, Fowler, Gallatin, Gregg. Hanna. Heister, Holmes, Jackson, Kitchell, Leib, Lyon, Livingston, Macon, Muhl-enburgh. New. Nicholas, Nicholson, Randolph, Smilie. J. Smith, S. Smith. Sumpter, Thomson, A. Trigg, J. Trigg,Tan Courtland, R. Williams. 35. A motion was then made to adjourn. Mr. Macon hoped the house would sit and decide the resolution proposed by the gentleman from Delaware, so as to have done with the business, and not to enter on another week with it: however. fifty-four rising for the adjournment, it was carried.
Monday. March 10. Mr. Bayard moved that the committee of the whole house, to whom was referred the message of the president relative to Thomas Nash alias Jonathan Robbins, and a resolution submitted by himself to the house, approbating the conduct of the president, and referred to that committee, be discharged from the further consideration thereof. A long debate arose upon this motion, in which Messrs. Randolph, Davis, Jones, Nicholas, Livingston and Eggleston spoke against it; and Messrs. Bayard. Bird, Otis, Kittera, Varnum, Rutledge, Edmund, Shephard and H. Lee in favour of it; when the question was taken by yeas and nays, and carried in the affirmative in manner following, to wit: Affirmative. Messrs. Baer, Bayard. Bartlett, Bird, Brace, J. Brown, Champlin. Claiborne, Craik, J. Davenport, F. Davenport. Dennis, Dent. Dickson, Edmond, Evans, A. Foster, D. Foster, Freeman, Glenn, Goode, G. Goodrich, E. Goodrich, Gordon, Gray, Gregg.- Griswold, Grove, Hanna, Harper. Henderson, Hill. Huger, Imlay. Kitch-ell, Kittera, H. Lee, S. Lee, Lyman, Linn, Nott, Otis, Parker, Pinckney. Platt, Powell, Reed, Rutledge. Sewell, Sheafe. Shepherd, S. Smith, Spaight, Thatcher, J. Thomas, Thompson, Var-num. Wadsworth, Wain. L. Williams. Woods. 62. Negative. Messrs. Alston, Bishop, R. Brown, Cabel, Christie, Clay. Conduit, Davis, Dawson, Eggleston, Elmendorf, Fowler, Gallatin, Heis-ter, Jackson, Jones, Lieh, Lyon, Livingston, Macon, Muhlenburgh, New. Nicholas. Nicholson, Randolph, Smilie, J. Smith, Standford, Stone, Sumpter, Taliafero. A. Trigg, J. Trigg, Van Courtland, R. Williams. 35.
Notwithstanding this disposal of the question, so far as its congressional aspect was concerned, Robbins’ surrender continued a fertile subject for party declamation.
The views taken by the opposition after the adjournment, may be gathered from the following extract from the Aurora, of June 20, 1800.
Jonathan Robbins.
During the late session of congress we were promised some facts concerning this unfortunate citizen; and we hoped to have had them in time for the discussion upon Mr. Livingston’s motion. We were disappointed then. We have been more successful since, and shall now lay ■before our readers the information we have obtained, literally, as we have obtained it, in a letter addressed by a gentleman residing at Danbury, to the editor of the Aurora. In the view of national independence; as it relates to our character as a nation; as it relates to the character and independence of our judiciary, it is a matter of utter-insignificance, whether Jonathan Robbins was a native of the Irish bogs or oí the rough declivities of Connecticut. Judge Bee himself declared as much from the bench; but he declared it in a sense different from what we conceive to be the ■ law of the land, or the law of nations. Judge Bee, according to the report published, asserted that it made no difference whether Robbins was a British or an American citizen; the treaty comprehended both descriptions, and he was delivered up. We conceive, that, having a law paramount to every treaty, that is the great charter of the federal constitution, to deliver him up, was <11 As a citizen, contrary to the constitution. (2) As charged with the crime of piracy on the high seas, over which the jurisdiction of all nations is common, it was a violation of law and justice. (3) That it was a violation of the constitution to deliver him up without the inquest of a jury.
The principal ground of defence set up to justify the interference of our executive, (and this appears to have been Pickering’s act Bolely,) was that Robbins was an alien born; and the prejudices of the public were called forth to palliate and mitigate the disgrace of the act, under this black subterfuge of inhumanity. It is well worthy of consideration, however, with what nice sympathy in crimes and maxims of government, the anglo-federalists and their British friends agree, it was a sufficient palliation of disgrace to say, Jonathan Robbins was a feigned name, and that in truth his name was Thomas Nash, a native of Waterford! It is remarkable that an Englishman was acquitted of murder at Waterford, in Ireland, under the British government, and upon this plea: The accused confessed that he had killed
In what way the proceeding was made use of at the fall election, may be seen from the following handbill, which, enclosed in black lines, like the “coffin handbills” of later days, was posted throughout the country:
Reader,
If thou art a Christian and a freeman, consider
By what unexampled causes. It has become necessary to construct
This monument
Of national degradation and Individual injustice, which is erected
To commemorate a citizen of the United States, Jo <atban Robbins, Mariner.
A native of Danbury, in the pious and industrious State of Connecticut,
who, Under the Presidency of John Adams, And by his advice
When Timothy Pickering was Secretary of State,
By whom he was ignominiously put to death llecnube
He was an American Citizen, *
After having been barbarously forced into the service of His conniry’s worst enemy.
And forced to fight Against his conscience and his country.
On board the British frigate Hermione. commanded by A monster of the name of Pigott,
Bravely asserted hi* right, to freedom as a man, And boldly extricated himself from the bondage of his
Tyrannical oppressors, After devoting them to merited destruction.
It you are a Seaman,
Pause—
Cast your ©yes into your soul, and ask,
If you had been as Robbins was,
Whatwould you have done?
What ought you not to do?
And look at Robbins
Hanging at a British yard-arm!
He was comrade,
And as true a tar ns ever a
He was your fellow-citizen,
And as brave a heart as bled at Lexington or Trenton; Like you.
He was a member of a Republic,
Proud of past glories, and
Boastful of national honour, virtue and independence; Like him, you one day may be
Trussed up to satiate British vengeance,
Your heinous crime
Baring to prefer danger or death
To a base bondage.
Alas,poor Robbins,
Alas, poor Liberty, Alas, poor, humbled, and degenerate Country.
For an explanation of the present position of the law in reference to extradition under a treaty with a foreign state, it is only necessary to turn to the admirable opinion of Judge Betts, in the late Case of Metzger [Case No. 9.511]. It was there held that, as a treaty is the supreme law of the land, it is entitled, when coming before the courts, to the same effect as an act of congress, though no act has been passed to define the method of its operation; that under such treaty a fugitive is subject to apprehension and commitment for a crime committed against the laws of the country demanding him as a fugitive, whether such crime be an offence in the country to which he has fled or not; and that, whether the casus foederis has arisen, or whether the compact will be executed, is. a political question to be decided by the president, the courts having no power to direct or contravene his decisions in the first instance. Whether the judiciary has authority in habeas corpus, after the fugitive is under arrest, to prevent his extradition, if the president decides to make it, was not decided.
Mr. Sasportas was the agent for the French republic, at the time their cruisers were permitted to sell their prizes in this port. The records of the district court in admiralty causes will prove this.
Copies of the ship’s books and accounts of the British navy, are made up every two months, and transmitted to the lords of the admiralty. The admiral procured transcripts of this ship’s books, in order to describe the persons and names of the crew.
Jonathan Robbins’ certificate was dated at New Xork, 20th May, 1795.
The following is taken from the advertisement of the British government of Antigua, April 14, 1798, describing Thomas Nash, with the other men that were on board the Hermi-one: “Thomas Nash, an Irishman, one of the forecastlemen. about five feet ten inches high, dark complexion, long black hair, remarkably hairy about the breast, arms, &c., had left the ship in Porto Cabello, had entered on board either an American or Spanish trading schooner.” In this advertisement it is remarkable that Thomas Nash is not called a warrant offi