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

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

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

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

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

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

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

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

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

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 is said that the then President of the United | executive opinion, that the case was not a case States declared the incompetency of the courts, for executive decision. The contrary is clearly judges, and officers, to execute this contract avowed. It is true, that when an individual, without an act of the legislature. But the then claiming the property as his, had asserted that President made no such declaration. claim in court, the executive acknowledges in itself a want of power to dismiss or decide upon the claim thus pending in court. But this argues no opinion of a want of power in itself to decide upon the case, if, instead of being carried 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 individual. 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; but it is certainly misunderstood, when it is considered as being an opinion that the question was not in its nature a question for executive decision.

It has been contended that the conduct of the executive on former occasions, similar to this in principle, has been such as to evince an opinion, even in that department, that the case in question is proper for the decision of the

courts.

The fact adduced to support this argument is the determination of the late President on the case of prizes made within the jurisdiction of the United States, or by privateers fitted out in their ports.

The nation was bound to deliver up those prizes in like manner, as the nation is now bound to deliver up an individual demanded under the 27th article of the treaty with Britain. The duty was the same, and devolved on the same department.

In quoting the decision of the executive on that case, the gentleman from New York has taken occasion to bestow a high 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 now under consideration shall be found, on examination, to be the same in principle with that which has been cited by its opponents as a fit precedent for it, then may the friends of the gentleman now in office indulge the hope, that when he, like his predecessor, shall be no more, his conduct too may be quoted as an example for the government of his successors.

The evidence relied on to prove the opinion of the then executive on the case, consists of two letters from the Secretary of State, the one of the 29th of June, 1793, to Mr. Genet, and the other of the 16th of August, 1793, to Mr. Morris.

In the letter to Mr. 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

In the letter to Mr. Morris, the secretary asserts the principle, that vessels taken within our jurisdiction ought to be restored, but says, it is yet unsettled whether the act of restoration is to be performed by the executive or judicial department. The principle, then, according to this letter, is not submitted to the courts whether a vessel captured within a given distance of the American coast, was or was not captured within the jurisdiction of the United States, was a question not to be determined by the courts, but by the executive. The doubt expressed is, not what tribunal shall settle the principle, but what tribunal shall settle the fact. In this respect, a doubt might exist in the case of prizes, which could not exist in the case of a man. Individuals on each side claimed the property, and therefore their rights could be brought into court, and there contested as a case in law or equity. The demand of a man made by a nation stands on different principles.

Having noticed the particular letters cited by the gentleman from New York, permit me now to ask the attention of the House to the whole course of executive conduct on this interesting subject.

It is first mentioned in a letter from the Secretary of State to Mr. Genet, of the 25th of 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 cases), 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 determi- | more respect, because the government of the nation shall be made known." United States was then so circumstanced as to In his letter of the 7th of August, 1793, the assure us, that no opinion was lightly taken up, secretary informs Mr. Genet that the President and no resolution formed but on mature considconsiders the United States as bound "to effec-eration. This decision, quoted as a precedent tuate the restoration of, or to make compensa- and pronounced to be right, is found, on fair tion for, prizes which shall have been made of and full examination, to be precisely and unany of the parties at war with France, subse-equivocally the same with that which was made quent to the 5th day of June last, by privateers in the case under consideration. It is a full fitted out of our ports." That it is consequently authority to show, that, in the opinion always expected that Mr. Genet will cause restitution held by the American Government, a case like of such prizes to be made, and that the United that of Thomas Nash is a case for executive States "will cause restitution" to be made "of and not judicial decision. all such prizes as shall be hereafter brought within their ports by any of the said priva-that "the trial of all crimes, except in cases of teers." impeachment, shall be by jury," has also been relied on as operating on the case, and transferring the decision on a demand for the delivery of an individual from the executive to the judicial department.

This clause in the constitution which declares

world. It is not designed to secure the rights of the people of Europe and Asia, or to direct and control proceedings against criminals throughout the universe. It can then be designed only to guide the proceedings of our own courts, and to prescribe the mode of punishing offences committed against the government of the United States, and to which the jurisdiction of the nation may rightfully extend.

In his letter of the 10th of November, 1793, the secretary informs Mr. Genet, that for the purpose of obtaining testimony to ascertain the fact of capture within the jurisdiction of the United States, the governors of the several But certainly this clause in the constitution States were requested, on receiving any such of the United States cannot be thought obliclaim, immediately to notify thereof the attor-gatory on, and for the benefit of the whole neys of their several districts, whose duty it would be to give notice "to the principal agent of both parties, and also to the consuls of the nations interested; and to recommend to them to appoint by mutual consent arbiters to decide whether the capture was made within the jurisdiction of the United States, as stated in my letter of the 8th inst., according to whose award the governor may proceed to deliver the vessel to the one or the other party." "If either party refuse to name arbiters, then the attorney is to take depositions on notice, which he is to transmit for the information and decision of the President." "This prompt procedure is the more to be insisted on, as it will enable the President, by an immediate delivery of the vessel and cargo to the party having title, to pre-ing and punishing him. A provision for the vent the injuries consequent on long delay."

In his letter of the 22d of November, 1793, the secretary repeats, in substance, his letter of the 12th of July and 7th of August, and says that the determination to deliver up certain vessels, involved the brig Jane of Dublin, the brig Lovely Lass, and the brig Prince William Henry. He concludes with saying: "I have it in charge to inquire of you, sir, whether these three brigs have been given up according to the determination of the President, and if they have not, to repeat the requisition that they may be given up to their former owners."

Ultimately it was settled that the fact should be investigated in the courts, but the decision was regulated by the principles established by the executive department.

The decision then on the case of vessels captured within the American jurisdiction, by privateers fitted out of the American ports, which the gentleman from New York has cited with such merited approbation; which he has declared to stand on the same principles with those which ought to have governed in the case of Thomas Nash; and which deserves the

It has already been shown that the courts of the United States were incapable of trying the crime for which Thomas Nash was delivered up to justice. The question to be determined is, not how his crime shall be tried and punished, but whether he shall be delivered up to a foreign tribunal which is alone capable of try

trial of crimes in the courts of the United States is clearly not a provision for the performance of a national compact for the surrender to a foreign government of an offender against that government.

The clause of the constitution declaring that the trial of all crimes shall be by jury, has never even been construed to extend to the trial of crimes committed in the land and naval forces of the United States. Had such a construction prevailed, it would most probably have prostrated the constitution itself, with the liberties and the independence of the nation, before the first disciplined invader who should approach our shores. Necessity would have imperiously demanded the review, and amendment of so unwise a provision. If then this clause does not extend to offences committed in the fleets and armies of the United States, how can it be construed to extend to offences committed in the fleets and armies of Britain or of France, or of the Ottoman or Russian empires?

The same argument applies to the observations on the seventh article of the amendments to the constitution. That article relates only to trials in the courts of the United States, and

not to the performance of a contract for the delivery of a murderer not triable in those courts.

In this part of the argument, the gentleman from New York has presented a dilemma, of a very wonderful structure indeed. He says, that the offence of Thomas Nash was either a crime or not a crime. If it was a crime, the constitutional mode of punishment ought to have been observed; if it was not a crime, he ought not to have been delivered up to a foreign government, where his punishment was inevitable.

appearance of endeavoring to fit the constitution to his arguments, instead of adapting his arguments to the constitution.

When the gentleman has proved that these are questions of law, and that they must have been decided by the President, he has not advanced a single step towards proving that they were improper for executive decision. The question whether vessels captured within three miles of the American coast, or by privateers fitted out in the American ports, were legally captured or not, and whether the American government was bound to restore them, if in It has escaped the observation of that gentle- its power, were questions of law, but they were man, that if the murder committed by Thomas questions of political law, proper to be decided, Nash was a crime, yet it was not a crime pro-and they were decided by the executive, and not vided for by the constitution, or triable in the by the courts. courts of the United States; and that if it was not a crime, yet it is the precise case in which his surrender was stipulated by treaty. Of this extraordinary dilemma then, the gentleman from New York is himself perfectly at liberty to retain either form.

He has chosen to consider it as a crime, and says it has been made a crime by treaty, and is punished by sending the offender out of the country.

The casus fœderis of the guaranty was a question of law, but no man could have hazarded the opinion that such a question must be carried into court, and can only be there decided. So the casus foederis, under the twenty-seventh article of the treaty with Britain, is a question of law, but of political law. The question to be decided is, whether the particular case proposed be one in which the nation has bound itself to act, and this is a question depending on principles never submitted to courts.

The gentleman is incorrect in every part of his statement. Murder on board a British fri- If a murder should be committed within the gate is not a crime created by treaty. It would United States, and the murderer should seek have been a crime of precisely the same mag- an asylum in Britain, the question whether the nitude, had the treaty never been formed. It casus fœderis of the twenty-seventh article had is not punished by sending the offender out of occurred, so that his delivery ought to be dethe United States. The experience of this un-manded, would be a question of law, but no fortunate criminal, who was hung and gibbeted, man would say it was a question which ought evinced to him that the punishment of his to be decided in the courts. crime was of a much more serious nature than mere banishment from the United States.

The gentleman from Pennsylvania, and the gentleman from Virginia, have both contended that this was a case proper for the decision of the courts, because points of law occurred, and points of law must have been decided in its determination.

The points of law which must have been decided, are stated by the gentleman from Pennsylvania to be, first, a question whether the offence was committed within the British jurisdiction; and secondly, whether the crime charged was comprehended within the treaty.

When, therefore, the gentleman from Pennsylvania has established, that in delivering up Thomas Nash, points of law were decided by the President, he has established a position which in no degree whatever aids his argument.

The case is in its nature a national demand made upon the nation. The parties are the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance.

The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.

He possesses the whole executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.

It is true, sir, these points of law must have occurred, and must have been decided: but it by no means follows that they could only have been decided in court. A variety of legal questions must present themselves in the performance of every part of executive duty, but these questions are not therefore to be decided in court. Whether a patent for land shall issue or not is always a question of law, but not a question which must necessarily be carried into court. The gentleman from Pennsylvania seems to have permitted himself to have been misled by the misrepresentation of the The treaty, which is a law, enjoins the perconstitution made in the resolutions of the gen-formance of a particular object. The person tleman from New York; and, in consequence who is to perform this object is marked out by of being so misled, his observations have the the constitution, since the person is named who

He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he, and he alone, possesses the means of executing it.

conducts the foreign intercourse, and is to take | litical discretion be placed so safely as in the care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the executive department to execute the contract by any means it pos