determined rightly. If, in consequence of this determination, he arrested the proceedings of a court on a national prosecution, he had a right to arrest and to stop them, and the exercise of this right was a necessary consequence of the determination of the principal question. In conforming to this decision, the court has left open the question of its jurisdiction. Should another prosecution of the same sort be commenced, which should not be suspended but con tinued by the executive, the case of Thomas Nash would not bind as a precedent against the jurisdiction of the court. If it should even prove that, in the opinion of the executive, a murder committed on board a foreign fleet was not within the jurisdiction of the court, it would prove nothing more; and though this opinion might rightfully induce the executive to exercise its power over the prosecution, yet if the prosecution was continued, it would have no influence with the court in deciding on its jurisdiction.

Taking the fact, then, even to be as the gentleman in support of the resolutions would state it, the fact cannot avail them.

It is to be remembered, too, that in the case stated to the President, the judge himself ap pears to have considered it as proper for executive decision, and to have wished that decision. The President and judge seem to have entertained, on this subject, the same opinion, and in consequence of the opinion of the judge, the application was made to the President. It has then been demonstrated:

1st. That the case of Thomas Nash, as stated to the President, was completely within the twenty-seventh article of the treaty between the United States of America and Great Britain.

2d. That this question was proper for executive, and not for judicial decision, and

3d. That in deciding it, the President is not chargeable with an interference with judicial decisions.

After trespassing so long, Mr. Marshall said, on the patience of the house, in arguing what had appeared to him to be the material points growing out of the resolutions, he regretted the necessity of detaining them still longer for the purpose of noticing an observation which appeared not to be considered by the gentleman who made it as belonging to the argument. The subject introduced by this observation, however, was so calculated to interest the public feelings, that he must be excused for stating his opinion on it.

The gentleman from Pennsylvania had said, that an impressed American seaman, who should commit homicide for the purpose of liberating himself from the vessel in which he was confined, ought not to be given up as a murderer. In this, Mr. Marshall said, he concurred entirely with that gentleman. He believed the opinion to be unquestionably correct, as were the reasons that gentleman had given in support of it. He had never heard any American avow a contrary sentiment, nor did he believe a contrary sentiment could find a place in the bosom of any American. He could not pretend, and did not pretend to know the opinion of the executive on the subject, because he had never heard the opinions of that department; but he felt the most perfect conviction, founded on the general conduct of the government, that it could never surrender an impressed American to the nation, which, in making the impressment, had committed a national injury.

This belief was in no degree shaken by the conduct of the executive in this particular

case.

In his own mind, it was a sufficient defence of the President from an imputation of this kind, that the fact of Thomas Nash being an impressed American was obviously not contem plated by him in the decision he made on the principles of the case. Consequently, if a new circumstance occurred, which would essentially change the case decided by the President, the judge ought not to have acted under that decision, but the new circumstance ought to have been stated. Satisfactory as this defence might appear, he should not resort to it because to some it might seem a subterfuge. He defended the conduct of the President on other and still stronger ground.

The President had decided that a murder committed on board a British frigate on the high seas, was within the jurisdiction of that nation, and consequently within the twenty seventh article of its treaty with the United States. He therefore directed Thomas Nash to be deli vered to the British ministers, if satisfactory evidence of the murder should be adduced. The sufficiency of the evidence was submitted entirely to the judge.

If Thomas Nash bad committed ʼn murder, the decision was that he should be surrendered to the British minister; but if he had not committed a murder, he was not to be surrendered. Had Thomas Nash been an impressed American, the homicide on board the Hermione would, most certainly, not have been a murder.

The act of impressing an American is an act of lawless violence. The confinement on board a vessel is a continuation of that violence, and an additional outrage. Death committed within the United States, in resisting such violence, would not have been murder, and the person giving the wound could not have been treated as a murderer. Thomas Nash was only to have been delivered up to justice on such evidence as, had the fact been committed within the United States, would have been sufficient to have induced his commitment and trial for murder. Of consequence, the decision of the President was so expressed as to

PROCEEDINGS IN HOUSE OF REPRESENTATIVES, ETC.

exclude the case of an impressed American liberating himself by homicide. He concluded with observing, that he had already too long availed himself of the indulgence of the House to venture farther on that indulgence by recapitulating or reinforcing the arguments which had already been urged.

Saturday, March 8. The only business which occupied the House was the unfinished business of Friday, on the question to agree with the committee of the whole in their disagreement with the resolution proposed by Mr. Livingston on the case of Jonathan Robbins. Mr. Nicholas spoke in answer to Mr. Marshall; immediately after which the question of agreement with the reported disagreement was taken by yeas and nays, as follows:

Yeas. Messrs. Bartlett, Bayard, Bird, J. Brown, Cooper, Craik, J. Davenport, Davis, Dennis, Dent, Dickson, Edmond, Evans, A. Foster, D. Foster, Freeman, Glen, Goode, C. Goodrich, Gordon, Gray, Griswold, Groves, Harper, Henderson, Hill, Imlay, Jones, Kittera, H. Lee, S. Lee, Lyman, Linn, Marshall, Nott, Otis, Page, Parker, Pinckney, Platt, Powell, Reed, Rutledge, Sewell, Sheafe, Sheppard, Spaight, Stone, Taliafero, Thatcher, J. C. Thomas, R. Thomas, Wadsworth, Waln, L. Williams, Varnum, Woods. 61.

Nays. Messrs. Baily, Bishop, R. Brown, Cabel, Christee, Clay, Conduit, Eggleston, Elmen dorf, Fowler, Gallatin, Gregg, Hanna, Heister, Holmes, Jackson, Kitchell, Leib, Lyon, Livingston, Macon, Muhlenburgh, New, Nicholas, Nicholson, Randolph, Smilie, J. Smith, S. Smith, Sumpter, Thomson, A. Trigg, J. Trigg, Van Courtland, R. Williams. 35.

A motion was then made to adjourn. Mr. Macon hoped the House would sit and decide the resolution proposed by the gentleman from Delaware, so as to have done with the business, and not to enter on another week with it: however, fifty-four rising for the adjourn ment, it was carried.

Monday, March 10. Mr. Bayard moved that the committee of the whole House, to whom was referred the message of the President relative to Thomas Nash alias Jonathan Robbins, and a resolution submitted by himself to the House; approbating the conduct of the President, and referred to that committee, be discharged from the further consideration thereof.

A long debate arose upon this motion, in which Messrs. Randolph, Davis, Jones, Nicholas, Livingston and Eggleston spoke against it; and Messrs. Bayard, Bird, Otis, Kittera, Varnum, Rutledge, Edmund, Shephard and H. Lee in favour of it; when the question was taken by yeas and nays, and carried in the affirmative in manner following, to wit:

Affirmative. Messrs. Baer, Bayard, Bartlett, Bird, Brace, J. Brown, Champlin, Claiborne, Craik, J. Davenport, F. Davenport, Dennis, Dent, Dickson, Edmond, Evans, A. Foster, D. Foster, Freeman, Glenn, Goode, G. Goodrich, E. Goodrich, Gordon, Gray, Gregg, Griswold, Grove, Hanna, Harper, Henderson, Hill, Huger, Imlay, Kitchell, Kittera, H. Lee, S. Lee, Lyman, Linn, Nott, Otis, Parker, Pinckney, Platt, Powell, Reed, Rutledge, Sewell, Sheafe, Shepherd, S. Smith, Spaight, Thatcher, J. Thomas, Thompson, Varnum, Wadsworth, Waln, L. Williams, Woods. 62.

Negative. Messrs. Alston, Bishop, R. Brown, Cabel, Christie, Clay, Conduit, Davis, Dawson, Eggleston, Elmendorf, Fowler, Gallatin, Heister, Jackson, Jones, Lich, Lyon, Livingston, Macon, Muhlenburg, New, Nicholas, Nicholson, Randolph, Smilie, J. Smith, Standford, Stone, Sumpter, Taliafero, A. Trigg, J. Trigg, Van Courtland, R. Williams. 35.

Notwithstanding this disposal of the question, so far as its congressional aspect was concerned, Robbins' surrender continued a fertile subject for party declamation.

The views taken by the opposition after the adjournment, may be gathered from the fol lowing extract from the Aurora, of June 20, 1800.

JONATHAN ROBBINS.

During the late session of Congress we were promised some facts concerning this unfortu
nate citizen; and we hoped to have had them in time for the discussion upon Mr. Living.
ston's motion. We were disappointed then. We have been more successful since, and
shall now lay before our readers the information we have obtained, literally, as we have
obtained it, in a letter addressed by a gentleman residing at Danbury, to the Editor of the
Aurora.

as it relates to our character as a nation; as it
In the view of national independence;
relates to the character and independence of our judiciary, it is a matter of utter insignifi
cance, whether Jonathan Robbins was a native of the Irish bogs or of the rough declivities
of Connecticut. Judge Bee himself declared as much from the bench; but he declared it
in a sense different from what we conceive to be the law of the land, or the law of nations.
Judge Bee, according to the report published, asserted that it made no difference whether
Robbins was a British or an American citizen; the treaty comprehended both descriptions,
We conceive that, having a law paramount to every treaty, that
and he was delivered up.
is, the great charter of the Federal Constitution, to deliver him up, was

1. As a citizen, contrary to the Constitution.

2. As charged with the crime of piracy on the high seas, over which the jurisdiction of all nations is common, it was a violation of law and justice.

1

3. That it was a violation of the Constitution to deliver him up without the inquest of a Jury.

The principal ground of defence set up to justify the interference of our Executive, (and this appears to have been Pickering's act solely,) was that Robbins was an alien born; and the prejudices of the public were called forth to palliate and mitigate the disgrace of the act, under this black subterfuge of inhumanity. It is well worthy of consideration, however, with what nice sympathy in crimes and maxims, of government, the anglo-federalists and their British friends agree. It was a sufficient palliation of disgrace to say, Jonathan Robbins was a feigned name, and that in truth his name was Thomas Nash, a native of Waterford! It is remarkable that an Englishman was acquitted of murder at Waterford, in Ireland, under the British government, and upon this plea the accused confessed that he had killed this man, but alleged that it was not murder, because he was a mere Irishman. The Hottentots are less barbarous than such civilized savages.

Public weakness having tolerated, in some measure at least by its sullen silence, the delivery of this unfortunate man into the talons of the British, it became a matter of some moment to discover the validity and authority which the certificates procured from Danbury, by the immediate application of Mr. Pickering, carried with them.

The certificates of the selectmen stated that they could find no such name as Jonathan Robbins on the records of Danbury.

The public will be surprised to find this fact literally true, and yet covering a most gross deception.

The records of Danbury were burnt along with the town, by the British, during our Revolutionary war.

Consequently, these selectmen could not find his name therein. Thus, we see too, that the barbarity of the British soldiery during our war with them has been accessary to the murder at the distance of twenty years.

Read the letter

The selectmen likewise asserted that they did not remember any family of the name of Robbins in Danbury. The matter has passed before the public, and the selectmen have recovered their memories, and they have actually found a family of that name, nay more, a brother of Jonathan Robbins, living within a few miles from that town. whoever wishes to see the original may see it in the hands of the Editor. Extract of a letter to the Editor, dated Danbury, June 1, 1800. "The delivering up of Jonathan Robbins under the 27th article of the British treaty, (for the furtherance of justice.) cannot, with all its palliation, be palatable to our citizens. On the subject of the certifi cates from this town, I wish to make a few observations. The gentlemen who wrote those certificates are, I believe, men of common honesty; they are so reported here, but assure yourself they are party men. In the first place the records of this town were burnt with the town in the time of the last war. It is not difficult to suppose a man might forget the record of a person whom he could not have thought of in twenty years, when the records where his name must have been deposited, had been reduced to ashes for that length of time; still less is the difficulty in conceiving that he might be born there, but never recorded. There is no impossibility or improbability that he belonged to an obscure family, then scarcely known, and now long since forgotten. Our selectmen have certified that they never knew a person by that name residing in this town for any length of time, but they now acknowledge a person, by the name of Robbins, once laboured somewhere in this neighbourhood, whose age would not altogether disagree with that of Jonathan Robbins, the Pirate. But, the following is an important and an astonishing fact, a fact which nonplused many of our certifiers, and which was related to me by one of the number. On making inquiry after the receipt of the Secretary's request, they found that a person of the name of Robbins was then residing in the boundaries of New York State, but near those of this town. This person they visited, and the information they obtained was, 'that he once had a brother by the name of Jonathan Robbins; that he had been absent some years, and he concluded dead, as he had not heard from him for a great length of time; that he believed, if his brother was alive, he was about thirtythree years old.""

In what way the proceeding was made use of at the fall election, may be seen from the following handbill, which, enclosed in black lines, like the "coffin handbills" of later days, was posted throughout the country.

Reader,

If thou art a Christian and a freeman,

consider

By what unexampled causes,

It has become necessary to construct
This monument

Of national degradation

and

Individual injustice, which is erected

To commemorate a citizen of the United States,
Jonathan Robbins, Mariner,

A native of Danbury, in the pious and industrious State of Connecticut,

who,

After having been barbarously forced into the service of his country's worst enemy, And forced to fight

Against his conscience and his country,

On board the British frigate Hermione, commanded by a monster of the name of Pigott,
Bravely asserted his right to freedom as a man,

And boldly extricated himself from the bondage of his tyrannical oppressors,
After devoting them to merited destruction.
If you are a Seaman,

Pause

For an explanation of the present position of the law in reference to extradition under a treaty with a foreign state, it is only necessary to turn to the admirable opinion of Judge Betts, in the late case of Metzger (5 New York Legal Observer, 83). It was there held that, as a treaty is the supreme law of the land, it is entitled, when coming before the courts, to the same effect as an Act of Congress, though no Act has been passed to define the method of its operation; that under such treaty a fugitive is subject to apprehension and commitment for a crime committed against the laws of the country demanding him as a fugitive, whether such crime be an offence in the country to which he has fled or not; and that, whether the casus fœderis has arisen, or whether the compact will be executed, is a political question to be decided by the President, the Courts having no power to direct or contravene his de cisions in the first instance. Whether the Judiciary has authority in habeas corpus, after the fugitive is under arrest, to prevent his extradition, if the President decides to make it, was not decided.