ous 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 has 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.

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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.

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.

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 It has been observed by my colleague Mr. what law then would such a contract be gov-Nicholas, for the purpose of showing that the erned? If all nations had jurisdiction over the distinction taken on this subject by the gentleplace, then the laws of all nations would equally man from Delaware Mr. Bayard is inaccurate, influence the contract; but certainly no man that any vessel robbed on the high seas could will hesitate to admit that such a contract be the property only of a single nation, and ought to be decided according to the laws of being only an offence against that nation, could that nation to which the vessel or contracting be, on the principle taken by the opposers of parties might belong. 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 oc

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

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 The same observations apply to the sixth an acquittal of the piracy would not have dis- section, which makes any "person or persons charged the murder; and, therefore, in the so guilty of misprision of felony, who, having much relied on trials at Trenton, a separate in- knowledge of murder or other offences en amerdictment for murder was filed after an indict-ated in that section, should conceal them. ment 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.

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?

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

it 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 It has already been shown that the legislative terms, which might embrace the subjects of all jurisdiction of a nation extends only to its own nations. But is it to be supposed that if in an territory, and to its own citizens, wherever they engagement between an English and a French may be. Any general expression in a legisla- ship of war, the crew of the one or the other tive act must, necessarily, be restrained to ob- should lay violent hands on the captain and jects within the jurisdiction of the legislature force him to strike, that this would be an passing the act. Of consequence an act of Con-offence against the act of Congress, punishable gress 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

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 gal lant 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.

My colleague has 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 protec- | the persons to have been within the peace, and tion of a foreign commission from an American murder to have been committed against the citizen, who, on the high seas, robs his country- peace of the United States. These are necesmen. This is no exception from any preceding sary averments, and, to give the court jurisdicpart of the law, because there is no part which tion, the fact ought to have accorded with them. relates to the conduct of vessels commissioned But who will say that the crew of a British by a foreign power: it only proves that, in the frigate on the high seas are within the peace opinion of the legislature, the penalties of the of the United States, or a murder committed act could not, without this express provision, on board such a frigate against the peace of any have been incurred by a citizen holding a other than the British government? foreign commission.

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

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

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

It 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 It has also been contended that the question Thomas Nash ought to have been delivered up of jurisdiction was decided at Trenton, by re-to the British minister, on the requisition made ceiving indictments against persons there ar- by him in the name of his government, yet the raigned for the same offence, and by retaining interference of the President was improper. them for trial after the return of the habeas This leads to my second proposition, which corpus. is:

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.

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

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

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

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