Chapter M: X. again called upon us. He said M. Talleyrand was (7)

Mr. LIVINGSTON said he did hope that this motion would not have been brought forward; but as he meant to vote in favor of it, after having declared his satisfaction with the documents, as sufficient to support his resolutions, he should be accused of advocating a question of which he had before spoken apparently differently, unless he should now give his reasons; and lest he should be accused of a desire to keep alive a calumny against the President of the United States, an effect which had been stated, he took opportunity to answer the insinuation by saying that he as much abhorred so mean a principle as any gentleman in the House.

Mr. MARSHALL said, it was with no inconsiderable regret that he perceived so much of the time of the House, which ought to be devoted to more beneficial purposes, employed in preliminary discussion. He thought that it was impossible the House could agree to a postponement, which the motion under consideration must cause when it was reflected how much time must be employed in procuring those papers--it could not take less than a month; for they could only be found, he would presume to say in the Court of the District of South Carolina: it was therefore scarcely to be expected that they could be obtained until just before the rising of the House, a period, if they arrived before the House rose, too late for their consideration.

Mr. BAYARD said he could not distinguish between the present motion and one yesterday negatived, because it must operate as a discharge upon the Committee of the whole House. There could be no doubt but the Secretary of State had furnished all the papers 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 honorable 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 had 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 session. 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. RUTLEDGE 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 from 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 was not a word of irregularity of proceeding in the Court, but the Executive was seriously charged.

Mr. DAVIS explained. He said his objects were to have the record in order to see whether Robbins did produce a certificate that he was an American citizen; to see a copy of the warrant by which he was committed; and thirdly, to know what stratagem or what proceedings were used to take him out of the cognizance of the Court, where he must have remained, if the President had not interfered. These things he wished to ascertain, but that would be impossible without the court record.

Mr. RUTLEDGE said, he conceived this to be the object, but he by no means thought that the gentleman would be satisfied on these points, were he to be possessed of the record. The gentleman might inquire the reasons for the Executive and Judicial conduct being as it was, but perhaps he would not receive the information. Every gentleman in the House would unite their vote to procure all the testimony within their reach, so as to enable the House to prosecute the business. We know, said Mr. R., what monstrous clamor has been raised about this business; we know that great pains have been taken to make the people believe that their fellow-citizen has been torn from his country; that he has been impressed into a foreign service; that the treaty has been violated; that their fellow-citizen has been taken to a foreign country, and there been tried in a summary manner and executed. We have been told for months past that this business would be inquired into; we wish not to avoid it; we will by all means in our power assist it; we have done it. Some time since papers were asked for, we agreed with gentlemen that they should be furnished; it was done, and they are now on your table. They have been there many days; so that gentlemen had sufficient time, long before this, to have known whether they were satisfied or not. The gentleman himself who brought forward the resolutions affected to be satisfied, but, in compliance with the wish of his friends, he now wishes to postpone it. We want to bring the matter to a decision, and so far as we can accommodate gentlemen and avoid delay we will do it.

Mr. NICHOLSON rose to correct what he considered a mistake in the gentleman last up, (Mr. RUTLEDGE,) 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 that 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.

That the President of the United States was not to be considered as the servant of that House, he was willing to admit, but he did not think 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 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 case 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 this resolution to this day 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. 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 further 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.

Mr. NICHOLAS thought, with the gentleman last up, that if the only inquiry was as to the conduct of the President, or if the inquiry was only to respect the judge, the papers might be dispensed with; but it was otherwise--the conduct of both was called forth to view by the resolutions, but how far the conduct of either may be reprehensible, depended on the testimony which might appear before the House. It was impossible to say what the President had done until the documents should be seen. If gentlemen refused the inquiry being made of the court in South Carolina, they, by that act, made the President answerable for every part of the facts, which he believed they would not pretend to do. He really believed it extremely important to know what steps had been taken in this very serious business, to know whether the man was in course for trial, and whether the President had acted in the hasty and premature manner which was stated, in delivering him up.

Mr. GALLATIN could not help observing the disposition which gentlemen evinced of placing the opinions and sensations expressed by one gentleman to the account of others. To take a fair view of the resolutions, what did they amount to? Nothing more than the deductions which one man had drawn from the message sent to this House by the Executive: these deductions, in the form of a resolution, he had submitted to the consideration of the Committee of the Whole. Now, except it could be proved that that gentleman had made all the deductions of and acted for every gentleman, there could be no ground for saying that every gentleman would be satisfied, without the evidence which might be collected from the records of the District Court of South Carolina. Was any gentleman in the House bound to be satisfied, with the gentleman from New York, that all the facts necessary to be known were furnished? Was every gentleman in the House bound to confine himself solely to the resolutions before the House? Certainly not. It could not be denied that the evidence now required was essential to a full investigation of the conduct of the judge, who was the principal agent of the Executive in this case.

Mr. H. LEE hoped that the gentleman from South Carolina would withdraw his motion. He would mention some reasons which would induce him to vote differently from gentlemen with whom he usually had the honor to vote. Considering this a question of very great importance, not only to the American people, and to the reputation of the House, but also to the highly respectable character presiding over our Government, he trusted the House would, in its whole process, be led by principles so fair and candid, as not to leave the least room for a charge of derogation from its own dignity or of the great subject it was discussing.

He would vote for the motion calling for the papers, but he would do it with an expectation that it would not postpone the discussion of the business so far as related to the conduct of the President of the United States. It appeared that the conduct of the President, as charged, was fully before the House; there could be no difficulty therefore to proceed on it; but, as far as respected the judge, Mr. L. trusted the record of the court would be sent, for he thought it but fair to gratify gentlemen who considered there was any material evidence wanting.

Mr. VARNUM 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 was never done with an evil design, nor with a view to interfere with any other department of the Government; but certainly to deny this evidence, which several gentlemen had 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 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 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 so much engaged 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 bordering much 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 these 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 was 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 depositions first taken before the judge; but as to the court being designated where the case was to be tried, he contended that it was not usual to insert it in 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 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. JONES said, that finding himself, from the vote he was about to give, implicated in the charge made by the gentleman from Delaware, (Mr. BAYARD,) that gentlemen who were yesterday ashamed to vote for the proposition to discharge the committee from further consideration of the subject, in general and express terms, because it would imply a distrust of the sufficiency of the ground on which to support the principles of the resolutions, were now disposed to effect the same object by a decision which would, in fact, go to evade the question during the present session, he felt himself impelled, by a respect for his own conduct, to explain the motives which would govern his vote on the present question. He considered the case which had been called into view by the proposition of the gentleman from New York, (Mr. LIVINGSTON,) as one that involved in it the dearest interests and deepest concerns of the people of the United States. The gentleman from Delaware (Mr. BAYARD) and the gentleman from Connecticut (Mr. DANA) had indulged themselves in the most violent invectives and unnecessary abuse against the unfortunate, the obscure, and insignificant character, now dead, who was the subject of this proposition. On this topic they had exercised all their powers of passionate declamation. If this was a grateful theme for the employment of their talents, he did not envy them the enjoyment of it. How that kind of argument would apply to the question, he left to the House to determine.

For his part, Mr. J. said, he deemed it totally immaterial whether the man was, as they had declared, an Irishman or not; whether he was a Turk, a Hottentot, or a native-born American, if he claimed to be an American citizen, and produced a certificate in due form, under the signature of a proper officer, of his citizenship, and that claim was slighted by the judge, or declared immaterial, and the fact not inquired into of his being a citizen, then he conceived the safety of the citizens of America to be equally put in jeopardy, as if the man had been born and raised in Charleston, in the circle of the judge's own acquaintance. If, he asked, a dagger aimed at my breast by an assassin in the dark, should by mistake or impetuosity pierce the bosom of another, would not the discovery of such an attempt awaken alarm, and demand a precaution for my future safety? Certainly it would. So in this case, if this man claimed to be a citizen, and wore about him the legal voucher of that claim, and if he was told in the presence of American citizens, "it is of no importance whether you are, or are not a citizen, that is a point of no concern in the case," notwithstanding it may afterwards be found he was no citizen, yet would it equally involve the safety of every true citizen who might fall into similar circumstances. We may congratulate ourselves that it has not fallen on a fellow-citizen, but we ought still to improve the lesson this case has presented. Mr. J. hoped that it would be improved, and that, at least, legislative provisions would be made to prevent this decision from operating on a citizen, if such a case should occur in future.

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 District Court of South Carolina, for one week, and negatived--yeas 32, nays 63.

The question then recurred upon adopting the resolutions.

Mr. MARSHALL spoke at length against it. He contended there was no prospect of coming to a decision of the original question this session, if this were adopted; and asked if the character of the President of the United States ought to be held up in the suspicious view in which the resolution placed it, until the next session of Congress? He hoped not. It seemed to him that a postponement amounted to a declaration to the people of America that there was much cause for suspicion, and that additional evidences were wanted to substantiate it.

Mr. NICHOLAS replied to Mr. M., and contended that the whole truth of the case was to come out of the additional testimony now asked for.

An adjournment was then called for, and negatived--yeas 30.

Mr. RANDOLPH spoke in favor of the resolution, and in answer to Mr. MARSHALL.

The question was then taken that the House do agree to the motion first proposed, and passed in the negative--yeas 44, nays 57.

And then the House adjourned.

FRIDAY, February 28.

Mr. HARPER moved a postponement of the order of the day on the business of Jonathan Robbins, until Monday. He did not conceive much progress would be made this day, and as there was much private business on hand it could not be gone through with. If the business be taken up on Monday it can be regularly gone through with without intermission.

The motion was agreed to.

MONDAY, March 3.

_Lake Superior Lands._

Mr. COOPER observed that a navy was considered an object of great importance, as was also our extended commerce, and neither of these could be carried on to any profit without a very liberal use of copper. That article could not be purchased at present at less than half a dollar a pound, but by attention to an object which was within our own power it might be had at a very low price. From these considerations he laid on the table the following resolution:

_Resolved_, That a committee be appointed to bring in a
bill authorizing the President of the United States to
appoint an agent to purchase of the Indians that tract of
land on the south side of Lake Superior, which shall
include the great copper bed.

Mr. C. said, as this invaluable copper mine was well known by individuals, it no doubt would soon become an object of speculation, but wishing to make it of public utility, as it must become if purchased, he hoped the proposition would be adopted.

_Jonathan Robbins._

The House then resolved itself into a Committee of the Whole on the Message of the President respecting Jonathan Robbins, when Mr. LIVINGSTON spoke about three hours in support of the resolutions he some time since submitted to the House on that subject.

Mr. BAYARD was proceeding to follow Mr. L. when a member moved the committee to rise and ask leave to sit again. Mr. B. objected: he said he was prepared to proceed if the House would have patience at that late hour to hear him. Several members expressed a desire that he might proceed, which he was doing, when the SPEAKER hoped the gentleman would give way to a motion for the committee to rise; he had no doubt of his friend being prepared for the discussion, but from the length the answer must necessarily take, the House certainly would be fatigued much before he would conclude. The motion was made and carried.

During Mr. LIVINGSTON'S observations he introduced a copy of the record of the Circuit Court in New Jersey, where three men were tried and acquitted on the charge of piracy, and one of them for murder, on board of the same frigate and at the same time. This record, on motion of Mr. RUTLEDGE, was ordered to be printed.

Mr. NICHOLAS, not being able to account to his satisfaction for the obvious change of conduct in our Executive in this recited instance and the one now under the consideration of the House (though precisely the same in facts) any other way than by supposing that a correspondence on the subject had occurred between the Executive of the United States and the British Government; though he expressed himself to be extremely unwilling, yet he thought it his duty to move that the President be requested to furnish it to the House.

An adjournment was immediately called and carried.

WEDNESDAY, March 5.

The House then resolved itself into a committee on the Message, when Mr. BAYARD proceeded, in answer to Mr. LIVINGSTON, in which he spoke about three hours.[50] The committee then rose, and obtained leave to sit again.

THURSDAY, March 6.

A message from the Senate informed the House that the Senate had passed the bill, entitled "An act declaring the assent of Congress to certain acts of the States of Maryland and Georgia," with an amendment; to which they desire the concurrence of this House.

_Jonathan Robbins._

The House went into Committee of the Whole on the Message of the PRESIDENT, in the case of Jonathan Robbins, when Mr. NICHOLAS spoke about three hours[51] in favor of the resolutions introduced by Mr. LIVINGSTON, which were negatived--yeas 34, nays 58.

Some discussion then took place on taking up the resolution presented by Mr. BAYARD, which was also with the Committee of the whole House. The committee at length rose without entering upon it, and reported their disagreement to the resolutions proposed by Mr. LIVINGSTON; and the question whether the committee should have leave to sit again was taken by yeas and nays, and carried--yeas 59, nays 38.

The question was then before the House to agree to the report of the committee in their disagreement with the resolutions.

Mr. GALLATIN rose, and entered generally into the argument, in a speech of about two hours, after which the House adjourned.[52]

FRIDAY, March 7.

_Jonathan Robbins._

The House took up the unfinished business of yesterday, and the question, Will the House agree with the Committee of the Whole in their disagreement to Mr. LIVINGSTON'S resolutions? being under consideration,

Mr. MARSHALL said, that believing, as he did most seriously, that in a Government constituted like that of the United States, much of the public happiness depended, not only on its being rightly administered, but on the measures of Administration being rightly understood--on rescuing public opinion from those numerous prejudices with which so many causes might combine to surround it, he could not but have been highly gratified with the very eloquent, and what was still more valuable, the very able and very correct argument which had been delivered by the gentleman from Delaware (Mr. BAYARD) against the resolutions now under consideration. He had not expected that the effect of this argument would be universal; but he had cherished the hope, and in this he had not been disappointed, that it would be very extensive. He did not flatter himself with being able to shed much new light on the subject; but, as the argument in opposition to the resolutions had been assailed with considerable ability by gentlemen of great talents, he trusted the House would not think the time misapplied which would be devoted to the re-establishment of the principles contained in that argument, and to the refutation of those advanced in opposition to it. In endeavoring to do this, he should notice the observations in support of the resolutions, not in the precise order in which they were made; but as they applied to the different points he deemed it necessary to maintain, in order to demonstrate, that the conduct of the Executive of the United States could not justly be charged with the errors imputed to it by the resolutions.

His first proposition, he said, was that the case of Thomas Nash, as stated to the President, was completely within the 27th article of the Treaty of Amity, Commerce, and Navigation, entered into between the United States of America and Great Britain.

He read the article, and then observed: The _casus foederis_ of this article occurs, when a person, having committed murder or forgery within the jurisdiction of one of the contracting parties, and having sought an asylum in the country of the other, is charged with the crime, and his delivery demanded, on such proof of his guilt as, according to the laws of the place where he shall be found, would justify his apprehension and commitment for trial, if the offence had there been committed.

The case stated is, that Thomas Nash, having committed murder on board of a British frigate, navigating the high seas under a commission from His Britannic Majesty, had sought an asylum within the United States; on this case his delivery was demanded by the Minister of the King of Great Britain.

It is manifest that the case stated, if supported by proof, is within the letter of the article, provided a murder committed in a British frigate, on the high seas, be committed within the jurisdiction of that nation. That such a murder is within their jurisdiction, has been fully shown by the gentleman from Delaware. The principle is, that the jurisdiction of a nation extends to the whole of its territory, and to its own citizens in every part of the world. The laws of a nation are rightfully obligatory on its own citizens in every situation where those laws are really extended to them. This principle is founded on the nature of civil union. It is supported every where by public opinion, and is recognized by writers on the laws of nations. _Rutherforth_, in his second volume, page 180, says: "The jurisdiction which a civil society has over the persons of its members, affects them immediately, whether they are within its territories or not."

This general principle is especially true, and is particularly recognized, with respect to the fleets of a nation on the high seas. To punish offences committed in its fleets, is the practice of every nation in the universe; and consequently the opinion of the world is, that a fleet at sea is within the jurisdiction of the nation to which it belongs. _Rutherforth_, vol. ii. p. 491, says: "there can be no doubt about the jurisdiction of a nation over the persons which compose its fleets, when they are out at sea, whether they are sailing upon it or are stationed in any particular part of it."

The gentleman from Pennsylvania, (Mr. GALLATIN,) though he has not directly controverted this doctrine, has sought to weaken it by observing that the jurisdiction of a nation at sea could not be complete even in its own vessels; and in support of this position he urged the admitted practice of submitting to search for contraband--a practice not tolerated on land, within the territory of a neutral power. The rule is as stated; but is founded on a principle which does not affect the jurisdiction of a nation over its citizens or subjects in its ships. The principle is, that in the sea itself no nation has any jurisdiction. All may equally exercise their rights, and consequently the right of a belligerent power to prevent aid being given to his enemy, is not restrained by any superior right of a neutral in the place. But, if this argument possessed any force, it would not apply to national ships-of-war, since the usage of nations does not permit them to be searched.

According to the practice of the world, then, and the opinions of writers on the law of nations, the murder committed on board the British frigate navigating the high seas, was a murder committed within the jurisdiction of the British nation.

Although such a murder is plainly within the letter of the article, it has been contended not to be within its just construction; because at sea all nations have a common jurisdiction, and the article correctly construed, will not embrace a case of concurrent jurisdiction.

It is deemed unnecessary to controvert this construction, because the proposition, that the United States had no jurisdiction over the murder committed by Thomas Nash, is believed to be completely demonstrable.

It is not true that all nations have jurisdiction over all offences committed at sea. On the contrary, no nation has any jurisdiction at sea, but over its own citizens or vessels, or offences against itself. This principle is laid down in 2 _Ruth._ 488, 491.

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 adopt. 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 was 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, that 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.

This is precisely the opinion maintained by the opposers of the resolutions. If the jurisdiction of America at sea be personal, reaching its own citizens only; if this be its appropriate part, then the jurisdiction of the nation cannot extend to a murder committed by a British sailor, on board a British frigate navigating the high seas under a commission from His Britannic Majesty.

As a further illustration of the principle contended for, suppose a contract made at sea, and a suit instituted for the recovery of money which might be due thereon. By the laws of what nation would the contract be governed? The principle is general that a personal contract follows the person, but is governed by the law of the place where it is formed. By what law then would such a contract be governed? If all nations had jurisdiction over the place, then the laws of all nations would equally influence the contract; but certainly no man will hesitate to admit that such a contract ought to be decided according to the laws of that nation to which the vessel or contracting parties might belong.

Suppose a duel, attended with death, in the fleet of a foreign nation, or in any vessel which returned safe to port, could it be pretended that any government on earth, other than that to which the fleet or vessel belonged, had jurisdiction in the case; or that the offender could be tried by the laws or tribunals of any other nation whatever?

Suppose a private theft by one mariner, from another, and the vessel to perform its voyage and return in safety, would it be contended that all nations have equal cognizance of the crime, and are equally authorized to punish it?

If there be this common jurisdiction at sea, why not punish desertion from one belligerent power to another, or correspondence with the enemy, or any other crime which may be perpetrated? A common jurisdiction over all offences at sea, in whatever vessel committed, would involve the power of punishing the offences which have been stated. Yet all gentlemen will disclaim this power. It follows, then, that no such common jurisdiction exists.

In truth the right of every nation to punish is limited, in its nature, to offences against the nation inflicting the punishment. This principle is believed to be universally true. It comprehends every possible violation of its laws on its own territory, and it extends to violations committed elsewhere by persons it has a right to bind. It extends also to general piracy.

A pirate, under the law of nations, is an enemy of the human race. Being the enemy of all, he is liable to be punished by all. Any act which denotes this universal hostility, is an act of piracy.

Not only an actual robbery, therefore, but cruising on the high seas without commission, and with intent to rob, is piracy. This is an offence against all and every nation, and is therefore alike punishable by all. But an offence which in its nature affects only a particular nation, is only punishable by that nation.

It is by confounding general piracy with piracy by statute, that indistinct ideas have been produced, respecting the power to punish offences committed on the high seas.

A statute may make any offence piracy, committed within the jurisdiction of the nation passing the statute, and such offence will be punishable by that nation. But piracy under the law of nations, which alone is punishable by all nations, can only consist in an act which is an offence against all. No particular nation can increase or diminish the list of offences thus punishable.

It has been observed by his colleague, (Mr. NICHOLAS,) for the purpose of showing that the distinction taken on this subject by the gentleman from Delaware (Mr. BAYARD) was inaccurate, that any vessel robbed on the high seas could be the property only of a single nation, and being only an offence against that nation, could be, on the principle taken by the opposers of the resolutions, no offence against the law of nations; but in this his colleague had not accurately considered the principle. As a man who turns out to rob on the highway, and forces from a stranger his purse with a pistol at his bosom, is not the particular enemy of that stranger, but alike the enemy of every man who carries a purse, so those who without a commission rob on the high seas, manifest a temper hostile to all nations, and therefore become the enemies of all. The same inducements which occasion the robbery of one vessel, exist to occasion the robbery of others, and therefore the single offence is an offence against the whole community of nations, manifests a temper hostile to all, is the commencement of an attack on all, and is consequently, of right, punishable by all.

His colleague had also contended that all the offences at sea, punishable by the British statutes from which the act of Congress was in a great degree copied, were piracies at common law, or by the law of nations, and as murder is among these, consequently murder was an act of piracy by the law of nations, and therefore punishable by every nation. In support of this position he had cited 1 _Hawk. P. C._ 267. 271-3, _Inst._ 112, and 1 _Woodeson_, 140.

The amount of these cases is, that no new offence 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; but 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
shall 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 be 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 H. 8. c. 4, and 28 H. 8. c. 15,
all treasons, felonies, piracies, and other crimes
committed on the sea, or where the admiral has
jurisdiction, shall be tried in the realm as if done on
land. But the statutes referred to affect only the manner
of the trial as far as respects piracy. The nature of the
offence is not changed. Whether a charge amount to piracy
or not, must still depend on the law of nations, except
where, in the case of British subjects, express acts of
Parliament have declared that the crimes therein specified
shall be adjudged piracy, or shall be liable to the same
mode of trial and degree of punishment."

This passage proves not only that all offences at sea are not piracies by the law of nations, but also that all indictments for piracy must depend on the law of nations, "except where, in the case of British subjects, express acts of Parliament" have changed the law. Why do not these "express acts of Parliament" change the law as to others than "British subjects?" The words are general, "all treasons, felonies, &c." Why are they confined in construction to British subjects? The answer is a plain one: The jurisdiction of the nation is confined to its territory and to its own subjects.

The gentleman from Pennsylvania (Mr. GALLATIN) 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 was 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 Laws of the United States_, vol. i. p. 10.) 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 offences 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 case, 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 of 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, not 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. M. said, had cited and particularly relied on the ninth section of the act; that section declares, that if a citizen shall commit any of the enumerated piracies, or any acts of hostility, on the high seas, against the United States, under color of a commission from any foreign Prince or State, he shall be adjudged a pirate, felon, and robber, and shall suffer death.

This section is only a positive extension of the act to a case which might otherwise have escaped punishment. It takes away the protection of a foreign commission from an American citizen, who, on the high seas, robs his countrymen. This is no exception from any preceding part of the law, because there is no part which relates to the conduct of vessels commissioned by a foreign power; it only proves that, in the opinion of the Legislature, the penalties of the act could not, without this express provision, have been incurred by a citizen holding a foreign commission.

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

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

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

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

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

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

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

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 the letter and the spirit of the twenty-seventh article of the treaty between the two nations. If the necessary evidence was produced, he ought to have been delivered up to justice. It was an act to which the American nation was bound by a most solemn compact. To have tried him for the murder would have been mere mockery. To have condemned and executed him, the court having no jurisdiction, would have been murder. To have acquitted and discharged him would have been a breach of faith, and a violation of national duty.

But it has been contended that, although Thomas Nash ought to have been delivered up to the British Minister, on the requisition made by him in the name of his Government, yet, the interference of the President was improper.

This, Mr. M. 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?