Article 6, Clause 2

Document 25

United States v. Robins

Bee, District Judge. The question on which I am now to give a decision, is grounded on a habeas corpus to bring the prisoner before me; and on motion by counsel on behalf of the consul of his Britannic majesty, the officer authorized by treaty to make the requisition, that the prisoner, charged with murder committed within the jurisdiction of Great Britain, shall be delivered up to justice, in virtue of the 27th article of the treaty of amity and commerce between the United States and Great Britain, signed the 19th of November, 1794.

Objections have been made by counsel on behalf of the prisoner to this motion, on a variety of grounds; and this case has been very fully argued on both sides. Two papers have been produced on behalf of the prisoner: one, a certificate from a notary public at New York, dated 20th of May, 1795, that Jonathan Robbins, a mariner, had that day deposed on oath before him, that he, the said Jonathan Robbins, was a citizen of the United States, and a native of Connecticut; the other is an affidavit of the prisoner, made in open court, that he is a native of Connecticut: and that about two years ago he was pressed from the brig Betsy of New York, on board the British frigate Hermione, and was detained there against his will, until the vessel was captured by the crew, and carried into a Spanish port, and that he gave no assistance. The motion before me has been opposed on a variety of grounds. It is contended, that it is a question of magnitude whether a citizen of the United States shall be tried by a jury of his own country, or in a foreign one: that the 27th article of the treaty, on which this motion is founded, is contrary to the constitution of the United States, and is therefore void; that the treaty can only relate to foreigners: that the fact in this case being [Volume 4, Page 611] committed on the high seas, the courts of the United States have competent jurisdiction: that a grand jury ought to make inquest, before a party shall be sent away for trial. It was also contended that this would strike at the root of the liberties of the people: that the constitution secured the right of trial by jury to the citizens; and that treaties and laws altering that, were of subordinate authority; and of course void: that the treaty making power may be abused; and it could never give authority to seize a person and send him away for trial. It was also contended, that this is not an offence within the contemplation of the treaty: the word "jurisdiction," means "territorial jurisdiction"; and that the act must be confined to offences committed within the territory of either; that the sending a person in confinement to be tried in a foreign country, is a punishment not to be inflicted on a citizen: that the treaty is a head without a body, legs or arms: that the affidavits do not come up to the point, and are not sufficient to prevent the party being entitled to bail.

These were the points on which the objections to this motion were argued. In the course of the arguments, warm and pathetic appeals to the passions were made on some of the old grounds of opposition to the treaty, which I endeavoured to check, because, as this treaty has been ratified agreeably to the express provisions of the constitution, and is therein declared to be the supreme law of the land, and I am religiously and solemnly bound by the oath I have taken to administer justice according to the constitution and laws, it is not in my power, nor is it my inclination, ever to deviate therefrom. If we attend to the constitution, and the amendments which are now part of it, we shall find, that all the provisions there made respecting criminal prosecutions, and trials for crimes by a jury, are expressly limited to crimes committed within a state or district of the United States. Indeed, reason and common sense point out that it should be so: for, what control can the laws of one nation have over offences committed in the territories of another? It must be remembered, also, that in the 27th article of the amendments, where it is provided that no person shall be held to answer for a capital offence, unless on a presentment by a grand jury, an exception is made to cases arising in the land or sea service, or even in the militia when in actual service, in time of war or public danger. This shows unequivocally, that trials by jury may be dispensed with, even for crimes committed within the United States; and those observations are at once an answer to all the arguments founded on the right to trials by jury, they being expressly limited to crimes committed within the United States, and even then with some exceptions.

The objections made to the treaty's being contrary to the constitution, have been so often and so fully argued and refuted, that I was in hopes no time would have been occupied on that subject, more especially as that treaty has been recognized by the legislature of the United States and is now in full operation. It is remarkable, that in the midst of all the warmth against the treaty, at its first publication, the 27th article was one of the few that was never excepted to; and I believe this is the first instance in which it had been held up as dangerous to liberty. The crime of murder is justly reprobated in all countries; and in commercial ones the crime of forgery is so dangerous to trade and commerce, that provision has been made in various treaties for delivering up fugitives from justice for these offences; and many instances may be produced of criminals sent back to be tried where the fact was perpetrated. What says the 27th article of the treaty now under consideration? In the first place it is founded on reciprocity: in the next, it is general to all persons, who, being charged with murder or forgery, whether citizens, subjects, or foreigners. It is for the furtherance of justice, because the culprits would otherwise escape punishment; no prosecution would lie against them in a foreign country; and if it did, it would be difficult to procure evidence to convict or acquit. This clause is founded on the same principle with that part of the constitution which declares, that the trial for a crime shall be held in the state where it shall be committed; and the act of congress to prevent fugitives from justice escaping punishment, declares, that they shall be delivered up when demanded, to be tried where they committed the offence, either on a bill found, or an affidavit charging them with the offence. The principle, then, being the same, and the one being expressly founded on the constitution and laws of the United States, no solid objection can lie against this clause of the treaty. Nor does it make any difference, whether the offence is committed by a citizen, or another person. This will obviate the objection made by the counsel on that head. And I cannot but take this occasion to observe, that the two papers produced by the prisoner, are only affidavits of his own, or a certificate founded on an affidavit, which are not evidence; and if they were, prove little or nothing. It is somewhat remarkable, that a man of the name of Jonathan Robbins, with the paper produced in his possession, should continue on board a British frigate for a length of time, under another name, and acting as a warrant officer, which impressed men are not likely to be entrusted with, and that he should afterwards take the name of Nathan Robbins, and lay in jail here five or six months, without the circumstance being made known until now.

All the arguments against delivering up the prisoner seem to imply that he was to be punished without a trial; the contrary of which is the fact: we know that no man can be punished by the laws of Great Britain without a trial. If he is innocent, he will be acquitted: if otherwise, he must suffer. This would be the case here, under similar circumstances.

The objection most relied on against this motion, is to the word jurisdiction, in the 27th article of the treaty, and that the crime being committed on the high seas, the courts of the United States have a concurrent jurisdiction. There is no doubt that the circuit courts of the United States have a concurrent jurisdiction, and this arises under the general law of nations; and if the 27th clause of the treaty in question had not expressly declared the right to demand, and the obligation to deliver over, the prisoner must have been tried here. With respect to the meaning of the word "jurisdiction," I think the case quoted from Vatt. Law Nat. bk. 1, c. 19, § 216, is conclusive, and this is corroborated by Ruth. Inst. bk. 2, c. 9, as to the jurisdiction [Volume 4, Page 612] over the men on board the vessels; and the clause itself seems to have contemplated this, because the word "jurisdiction" is used distinctly from countries in the next line; and this shows, that territorial jurisdiction, as contended for, cannot apply to the present case.

When application was first made, I thought this a matter for the executive interference, because the act of congress respecting fugitives from justice, from one state to another, refers it altogether to the executive of the states; but as the law and the treaty are silent upon the subject, recurrence must be had to the general powers vested in the judiciary by law and the constitution, the 3d article of which declares the judicial power shall extend to treaties, by express words. The judiciary have in two instances in this state, where no provisions were expressly stipulated, granted injunctions to suspend the sale of prizes under existing treaties. If it were otherwise, there would be a failure of justice.

I have carefully reviewed the arguments advanced by the counsel for the prisoner. I have looked into the constitution, the treaty, the laws, and the cases quoted: and upon a full investigation of them all, I am of opinion, that from the affidavits filed with the clerk of the court, there is sufficient evidence of criminality to justify the apprehension and commitment of the prisoner for trial, for murder committed on board a ship of war belonging to his Brittanic majesty, on the high seas: that requisition having been made by the British consul, the officer authorized to make the same, in virtue of the 27th article of the treaty of amity and commerce between the United States and Great Britain, I am bound by the express words of that clause of the treaty, to deliver him up to justice. And I do therefore order and command the marshal, in whose custody the prisoner now is, to deliver the body of the said Nathan Robbins, alias Thomas Nash, to the British consul, or such person or persons as he shall appoint to receive him.

Contemporary Comments

[John Marshall] "I observe in a late paper of the Examiner, several strictures on the case of Robbins, who was delivered to the British consul at Charleston, under the 27th article of the treaty of amity and commerce between Great Britain and America, censuring the measure in general, but reprobating the conduct of the president in a particular manner. These strictures, calculated to exasperate the public mind, would probably lose their effect upon a fair explanation of the nature of the business, and therefore I have thought it worth while, for the sake of removing unjust impressions, and satisfying the minds of those who really wish for information relative to the necessary mode of proceeding in cases of that kind, to endeavour to make a just representation of the matter, as far as I am able to understand the case from the mutilated publications which we have seen of it. As to the opinion of the learned judge upon the case, I shall not enter into any arguments in support of it, because they would be useless and unnecessary, as the reasoning contained in his own excellent speech upon the subject is perfectly correct, and must be convincing to every unprejudiced mind. I shall therefore confine myself to that part of the case which respects the president's letter only: which I am induced to do, not because I think it needs any justification with candid men, who know the nature of such proceedings, but because I wish to prevent the effects which are intended to be produced from it upon the minds of those who do not possess the kind of information necessary to enable them to judge impartially on the subject. The case, from the publication which I have seen, I suppose to be this. The British government, having discovered that Robbins was in Charleston, applied to the judge for a warrant to secure him until application could be made to government for him. The warrant was granted, and an application, with the evidences of the charge, were laid before the president, who, being satisfied that it was a case within the treaty, directed the judge, as he was arrested under his warrant, to deliver him up, and the single question is, whether this proceeding in the present case was regular. By the treaty of amity made when the two nations neither did nor could contemplate this, or the case of any other individual, it is mutually stipulated that fugitives from justice who have been guilty of murder or forgery in one of the nations, and have taken shelter in the territories of the other, shall be delivered up to the injured government. Those stipulations are reciprocal, and America, whenever a case shall happen, will have the same right to demand a fugitive of Great Britain that the latter had to demand Robbins of the United States. Nor can either nation refuse, for the words are positive. They are: 'It is further agreed, that his majesty and the United States, on mutual requisitions by their respective ministers or officers authorized to make the same, will deliver up to justice all persons who, being charged of murder or forgery committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other, provided that this shall only be done on such evidence of criminality as, according to the laws of the place where the fugitive or persons charged shall be found, would justify his apprehension and commitment for trial, if the offence had there been committed. The expense of such apprehension and delivery shall be borne and defrayed by those who make the requisition and receive the fugitive.' These words contain an absolute engagement to deliver such characters up, and neither nation can refuse or neglect it without a violation of the treaty. It is, therefore, a certain fact, that Great Britain, by the express words of the treaty, had a right to demand Robbins in the present case, who was accused of murder, one of the enumerated offences for which fugitives were to be delivered up. There must, therefore, have been some mode of carrying the provision of the treaty in this respect into execution, or else the articles would be nugatory; and it would be absurd to suppose the parties meant to stipulate for a thing which could not be performed. The question then is, what mode should be pursued when a requisition of this kind is made, and what proceedings should take place in order to comply with it. The treaty has not pointed out any mode, and therefore we must recur to principles and the nature of things in order to discover it. As nations do not communicate with each other but through the channel of their government, the natural, the obvious, and the proper mode, is an application on the [Volume 4, Page 613] part of the government (requiring the fugitive) to the executive of the nation to which he has fled, to secure and cause him to be delivered up. (1) Because the government being the only channel of communication between the nations, the British government, in cases of this kind, has nothing to do with the detail and internal regulations of ours, nor we with theirs. For as the governments have respectively undertaken to do the thing which is required, the injured nation is not concerned any further with the business than merely to exhibit the proofs and call on the other for the performance of the treaty; and the nation called on must attend to the details and internal regulations themselves. (2) Because the government to which the fugitive has fled ought to be informed why an inhabitant is forced away from its territories; and therefore a removal of any person therefrom, without an application to the chief magistrate, would not only be dangerous to the personal safety of individuals, but would be an indignity and an affront which ought not to be offered. (3) Because, without such an application, the injured nation could not complain of an infraction of the treaty on the part of the other government in not delivering up the fugitive. For it would be an irresistible argument to such a complaint, that no application was ever made to the government itself. Nor would it strengthen the complaint, that an application was made to some inferior authority; because an application to subordinate officers who do not represent the general national concerns, would not only be improper on account of the inconvenient practices it might introduce (for by that means a man might be carried off without government having an opportunity of protecting him), but, in case the requisition were not complied with, could not be a just ground of reproach to the government itself, which was never informed of the application. (4) Because, it is manifest from what has been said, as well as from the very nature of things, that government must have a right to decide whether a fugitive should be delivered up or not. For it is a mere question of state, and all questions relative to the affairs of the nation emphatically belong to the government to decide upon. Therefore, in case of a requisition for a fugitive by the United States from Great Britain, the application would be to the executive, and not to the judiciary, or any other inferior department of the government. It follows, therefore, that an application to the government itself is essential; and accordingly, in the case under consideration, such an application was actually made. But surely the business was not to rest there. Some further steps were necessary, or else the application would have been to no purpose.

"The government, as we have already seen, was bound by engagement to cause delivery to be made; and therefore the president was under the necessity of taking some order in the business which might produce the object of the application. For, having been informed that the man was under confinement, upon the charge on which the application was made, until the determination of government upon the subject could be known, he was bound to give some directions in the business, so that the prisoner might either be liberated or delivered up, and those directions could only be given in writing. If the president had said to the British ambassador: 'You must apply to the judge under whose warrant he was arrested, and he will deliver the prisoner to you,' the obvious answer would have been, 'Sir, I cannot do so without your warrant. If I apply to your judge, I shall certainly be told again as I was told before, that he cannot interfere in a business of state without the knowledge of government; and it will be in vain for me to tell him that I have your instructions upon the subject, unless I am able to produce some evidence of them.' It follows, therefore, that the president was bound to give some written instructions upon the subject; because no other would, or ought to have been credited by the judge.

"The only question then is, whether the letter of the secretary of state contained the proper instructions or not? If I am right in my position that the application, in all such cases, should be made to the executive, and that the executive has a right to decide whether the requisition should be complied with or not; it follows necessarily, that when information was given to the judge that application had been made, it ought to have been accompanied with some expression of the will of government upon the subject. For it would have been ridiculous in the president to have ordered a letter to be written to the judge, informing him that an application had been made, without informing him also what government had resolved to do in the business; because that would have left the judge exactly where he was; and he would have been at liberty to have considered it as a mere private letter from one gentleman to another, and not as an official document, on which he was bound to act. So that, if under that impression he had resolved to have taken no steps in the business, he not only would have stood excused himself, but the British government would have had just cause to complain that our conduct was illusory, and that the stipulations of that treaty were evaded. But, if it be admitted that any declaration of the president was necessary upon the subject, more eligible terms than those used by the secretary of state, even according to the garbled publication which we have of them, could not have been chosen. For they are the usual phrases all over the United States, from the governor down to the county court magistrate. There is not a mandate of any kind in use amongst us, which does not contain the word 'require'; and it will surely be admitted that the word 'advise' is at least as harmless as the words 'command' and 'at your peril,' which are to be found in the warrant of every superior to his inferior officer throughout the United States. Let me now, then, ask any candid man, if the inference drawn by the Examiner from this letter, namely, that the president had endeavoured to influence the opinion of a judge, in a matter depending before him, be a correct one? On the contrary, it is manifest from what has been said, that the matter never was, nor could be regularly before the judge, until he had received this letter, which was the ground and foundation on which he was to proceed. Until then he had no authority to act definitely upon the question; and so the judge evidently appears to have considered it himself. For it was handed to the counsel on both sides, plainly as the authority on which he proceeded. Otherwise, he would not have shown it at all, or else he would have done it in a very different [Volume 4, Page 614] manner. It was, therefore, a mere official paper, and not a letter which was intended to be intruded upon the judge, in order to influence his determination in a matter depending before him. It was itself the very process, if I may use the expression, which brought the case before the judge.

"Perhaps it will be said that the judge himself has denied the authority of the executive; and there is a passage in his speech which looks that way. But this is a part of the opinion of the judge which seems liable to be questioned; and I strongly suspect it is not truly stated in the public prints, or else it comes to this, that the judge was of opinion that everything relative to treaties was to be transacted by the judges and not by the executive; a position which he certainly did not mean to maintain, and, therefore, the passage alluded to ought to be understood with some qualification.

"Perhaps the following solution may reconcile his opinion with the doctrine I have been contending for: The judge probably meant to say, that he once thought it a question which exclusively belonged to the executive, and therefore, that he, as a judge, could not in any manner be required to aid in the execution of the treaty. But finding, by recurrence to the constitution, that the judicial power extended to treaties, he was then satisfied that the judges might be called on, where circumstances rendered it proper, to take the necessary steps, in order to have the treaty carried into effect, as by issuing a warrant to secure the fugitive, until the determination of government could be known, and after that was promulgated, giving the necessary orders for carrying the determination into effect. With this qualification, the opinion of the judge was correct, and I therefore incline to think that he ought to be so understood in the passage under consideration. Upon the whole, the president appears to have done no more than his duty. For suppose it had been said that the British government had applied to the president for a fugitive from justice under the treaty, and that the latter, instead of ordering him to be delivered up, had refused or neglected to do it, without assigning any reason for it. How could the president have justified his conduct in that case? And might it not then have been said with propriety, that he had neglected his duty and omitted to execute one of the supreme laws of the land, which he was bound to observe and have carried into effect? In short, if some men would use but half the industry in examining into the real motives of the president's conduct upon any occasion, that they do in finding out reasons to reproach him, they would soon be convinced that, in no instance of his administration, has he either encroached upon the duty of others, or omitted to perform his own." 1 Hall. Jour. Jur. 28.

[Charles Pinckney] "To the Citizens of the United States: As congress must by law provide, at their next session, for any similar cases which may occur under the British treaty, and as it is of general importance to the citizens of the United States, the following examination of the case of Jonathan Robbins, lately decided in the district court of South Carolina, is with deference submitted to their consideration: Fellow Citizens--As I believe you have not been much troubled with my remarks on any subject, I hope you will more readily excuse the favour I now ask, in requesting your attention to the present. I am induced to make them, because the question is of very great public consequence, and involves the dearest and most valuable rights of every man in the United States. It reaches all situations, as well the elevated and opulent as the most indigent. It affects the knowledge and independence of our judicials in the most important manner; and as I know it has excited the sensibility of the people, and must be so far made the subject of inquiry in congress as to enable them to provide for similar cases; I have supposed some examination of it may be necessary, in that spirit of deference and delicacy in which all such inquiries should be conducted. I shall not go into a definition of the principles of a free government, and the blessings its citizens ought to expect; because few of our own, even amongst the most illiterate, are ignorant of the nature of a representative government, the right of suffrage, and the inestimable privilege of the trial by jury, in all cases in which their characters, lives or property are concerned. To a people so informed, it is scarcely necessary to remark, that to men of feeling the value of character, of honorable fame, is dearer than life or property, or even the most tender connections: that to all men, whether of the nicest honour or otherwise, the love of life is dearer than that of property, and that they would readily sacrifice the one to preserve the other. Hence it follows, that those privileges which guard the character and lives of our citizens are viewed with a more jealous eye, and will be asserted with more firmness and promptitude, than even those which protect their properties, vigilant as they are with respect to these. A number of our citizens, therefore, believing that the inestimable privileges secured to them by the constitution and laws of the United States, have been affected in the case of Jonathan Robbins, that it is one which may if established as a precedent, reach some valuable inhabitants of this country, and to the intent that these privileges should be more carefully guarded by a positive law in future, the following remarks are submitted, with a view to bring this business more fully before the public than it has hitherto been. The following is the statement of the case, with the accompanying affidavits: It appears, however, by the result, that these affidavits, and the question whether the prisoner was an American, and an impressed seaman or not, were, in the opinion of the court, altogether immaterial: the court would have felt itself bound to deliver up any respectable citizen of the United States, if claimed under the circumstances of the prisoner. It appears by the preceding statement, that the judge, under the circumstances of this case, would feel himself obliged to deliver up any respectable citizen of the 'United States.' I do not mention this because he used the words 'respectable citizen'; but I do it to show, that this is a question which seriously concerns every part of the community, and that no citizen whose business may oblige him to go to other countries, is hereafter safe from such demands. It will not depend upon him to say he is not a mariner, or to show proofs or certificates to the contrary. It will depend upon the force with which he is attacked, and the temper or [Volume 4, Page 615] violence of the officer who directs it. Instances, it is said, have lately occurred where not only the seamen but the passengers have been impressed, who, although declaring they were not seamen, were still impressed as such, and obliged to perform their duties. No production of papers, no entreaties availed them: they were compelled to submit. Had these men been enterprising, or an opportunity offered, and they had possessed themselves of their oppressors, and brought them into port: or had they, in the attempt to regain their freedom, been obliged to destroy them, while the world would have applauded the act, the judge must, from the decision, have delivered them to a similar demand; neither influence, fortune, or friends could have saved them. However superior in these, in political privileges they were only equal to the unknown and friendless Robbins. A consistent and inflexible magistrate must view them with the same impartial eye: he must give to them the same construction of the law or constitution; he could not vary them without the immediate loss of character. An enlightened people, therefore, will as attentively, nay, they ought more carefully to guard them in the person of a poor and unprotected than a rich or considerable man. The latter will always find powerful friends to support and protect his privileges; while the rights of the former may in silence and with impunity be unattended to merely because he is unknown, and has not an advocate to assert them. This would probably have been the case in the present instance, had not some gentlemen voluntarily offered themselves to examine and discuss its consequences. The public are obliged to them: it is an excellent example, I hope it will be followed upon every occasion, and that it will make us infinitely more vigilant of our rights than ever. We must never forget that in this country the poor and the rich, the humble and the influential, are entitled to equal privileges; that we ought to consider a violation of the rights of the most indigent and unprotected man, as an injury to the whole; while we have a pen to guide, or a voice to lift, they should constantly be exerted against the exercise of tyranny or oppression, by whatever nation committed or to whomsoever the violence may be done.

"I now proceed to examine the case and the nature of the evidence, on which Mr. Bee determined to deliver Jonathan Robbins to the demand of the British minister. I believe it is the first instance which has occurred, of a demand under the British treaty in the United States; certainly, in this state. The law respecting the delivery of fugitives from justice was silent on the delivery of fugitives to foreign powers, therefore the judge conceived himself not only authorized but bound to interfere. By his own statement it appears to have been entirely a new case, in which I should suppose he had considerable discretion, and was not bound by any particular legislative act to deliver on a mere affidavit or any 'trivial surmise or hearsay evidence.' It was his duty to have maturely considered what were the legal import and meaning of the words, 'charged with murder and forgery,' and how far, according to the laws of this country, there was such evidence of criminality as would justify the sending any man, claiming to be a citizen, and not disproved as such, from his country, to be tried by a foreign tribunal, and most probably by a court martial. The judge's auditors must have been surprised when they heard him say 'that no man can be punished by the laws of Great Britain without a trial; if he is innocent, he will be acquitted; if guilty, he must be punished.' This observation was by no means applicable to the present case: the true question before the court was, whether Jonathan Robbins, producing a notarial certificate of being a citizen of the United States, and asserting that he was impressed by violence into the British service, was, from the nature of the affidavits before him, to be torn from his country and connexions, and deprived of all the rights of citizenship, and sent to be tried by a foreign tribunal, acting without a jury, in the most summary manner, and by martial law. I do not pretend to equal legal knowledge with the judge: but I have sometimes attended to points of this kind; and as far as I am able to form, am clearly of opinion that the prisoner, not having been disproved to be a citizen of the United States, there was not such evidence before the court as justified the judge in giving so important an order, as to surrender him to the demand of the British consul.

. . . . .

"I now come to the policy of the measure in the United States. More than any other nation, except Great Britain, ought the privileges of our seamen to be vigilantly attended to--they are the instrument of our commerce, and to them their country must look up as the true means of becoming an important naval power--of having the ability to protect and guard their rights, and to insure to its citizens the blessings of peace: they are more exposed to the attacks and insolence of powerful and overbearing nations than any other class of our citizens, and are therefore more entitled to the care and attention of our public guardians. Possessing as the United States do, bulky products, every day increasing, and to export which great quantities of shipping and numbers of seamen are necessary, to what portion of their citizens can they look with more anxiety than to them? Numerous as they may become within these ten years, who knows to what extent the parental and fostering hand of government may increase them within the like succeeding period? But to effect this we must value and cherish them. We must recollect that they are not our men, but citizens--that they do not, the moment they become impressed by a superior foreign force, lose their rights or become lost to their country. Can it be supposed, because they are seamen, they have no families, no tender connexions, no comforts to endear their homes to them? Rough and boisterous as is the element they traverse, and laborious as are their lives, among none of our citizens are to be found more true independence and generosity, or more ardent attachment to their country. If, then, they have those passions, that impatience of insult, that invincible thirst for revenge, which indignities like impressment and tyranny never fail to provoke, are they to be punished for using opportunities to exercise them? Are they to submit to the manacle and the lash, without a murmur, because they fear their country, however possessing the means, may not have the inclination to protect them? If so, adieu to your commerce and your navy! Your seamen will fly to other governments more [Volume 4, Page 616] sensible of their value, and more disposed to assert and maintain their rights.

"I will here take notice of the letter which the judge was said to have received from the secretary of state, mentioning, that 'the president advises and requests the delivery of the prisoner,' because it has made some noise, and I do not view it in the same light with others. I believe that neither of them meant to influence the opinion of the judge--that they supposed it was a mere matter of course--that there was no doubt as to the identity or country of the prisoner; and they probably never heard of his claim of citizenship; that they were anxious, on the part of this government, faithfully to execute the treaty, and that the letter to the judge had another intent. This I really believe to be the case; but the noise it has made will show the extreme impropriety of the higher executive officers of our government ever touching, in the most distant manner, on any subjects that may come before the judicial. However innocent the intention, as I think it was in this instance, it is very apt to give rise to unfavourable opinions;--and none more dangerous to a community can be entertained, than that of a wish of the executive to influence the judicial. It weakens the confidence of the public in both; and lessens the respect it is their wish to show them. The present instance will probably operate to advantage; because it is to be supposed that after this our secretaries will be careful to avoid ever writing to a judge on any subject that may possibly come before him. In one thing I perfectly agree with Mr. Bee; and that is, in his avoiding to question the constitutionality of the treaty, although I think it constitutional. On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of congress, a doctrine which is not warranted by the constitution, and will not, I hope, long have many advocates in this country.

"I shall here conclude my remarks on this case. They are made in that spirit of deference and respect, which is intended to avoid giving offence, while it examines with candour the subject under discussion. My earnest wish is to draw the attention of congress to the amendment of the act, and to prove to them the necessity of providing in future against the delivery of any fugitives, unless a bill is found against them by a grand jury: to guard them against entering into any articles on this subject in other treaties, unless they assent to it; and particularly to warn them against ever forming any agreements respecting fugitives from justice, except with nations whose citizens possess the right of trial by jury, and are willing to reciprocate so indispensable a provision.

"A South Carolina Planter.

"Charleston, August 3d, 1799."

The Founders' Constitution
Volume 4, Article 6, Clause 2, Document 25
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The University of Chicago Press