Volume II Part 52 (1/2)
The fires kindled by the Alien and Sedition Laws did not heat to greater fervency the public imagination. Here was a case personal and concrete, flaming with color, full of human appeal. Jefferson took quick party advantage of the incident. ”I think,” wrote he, ”no circ.u.mstance since the establishment of our government has affected the popular mind more.
I learn that in Pennsylvania it had a great effect. I have no doubt the piece you inclosed will run through all the republican papers, & carry the question home to every man's mind.”[1056]
”It is enough to call a man an _Irishman_, to make it _no murder_ to pervert the law of nations and to degrade national honor and character.... Look at what has been done in the case of _Jonathan Robbins_,” [_sic_] exclaimed the ”Aurora.” ”A British lieutenant who never saw him until he was prisoner at Charleston swears his name is Thomas Nash.” So ”The man is hanged!”[1057]
For the purposes of the coming presidential campaign, therefore, the Robins affair was made the princ.i.p.al subject of Republican congressional attack on the Administration. On February 4, the House requested the President to transmit all the papers in the case. He complied immediately.[1058] The official doc.u.ments proved beyond a doubt that the executed sailor had not been an American citizen, but a subject of the British King and that he had committed murder while on board a British vessel on the high seas.
The selectmen of Danbury, Connecticut, certified that no such person as Jonathan Robins nor any family of the name of Robins ever had lived in that town. So did the town clerk. On the contrary, a British naval officer, who knew Nash well, identified him.[1059]
Bayard, for the Federalists, took the aggressive and offered a resolution to the effect that the President's conduct in the Robins case ”was conformable to the duty of the Government and to ... the 27th article of the Treaty ... with Great Britain.”[1060]
Forced to abandon their public charge that the Administration had surrendered an innocent American citizen to British cruelty,[1061] the Republicans based their formal a.s.sault in Congress upon the ground that the President had disobeyed the laws, disregarded the Const.i.tution, and taken upon himself the discharge of duties and functions which belonged exclusively to the courts. They contended that, even if Nash were guilty, even if he were not an American citizen, he should, nevertheless, have been tried by a jury and sentenced by a court.
On February 20, Livingston of New York offered the Republican resolutions to this effect. Not only was the President's conduct in this serious business a ”dangerous interference of the Executive with judicial decisions,” declared the resolution, but the action of the court in granting the President's request was ”a sacrifice of the Const.i.tutional independence of the judicial power and exposes the administration thereof to suspicion and reproach.”[1062]
The House decided to consider the Livingston resolutions rather than those offered by Bayard, the Federalists to a man supporting this method of meeting the Republicans on the ground which the latter, themselves, had chosen. Thus the question of const.i.tutional power in the execution of treaties came squarely before the House, and the great debate was on.[1063] For two weeks this notable discussion continued. The first day was frittered away on questions of order.
The next day the Republicans sought for delay[1064]--there were not sufficient facts before the House, they said, to justify that body in pa.s.sing upon so grave a question. The third day the Republicans proposed that the House should request the President to secure and transmit the proceedings before the South Carolina Federal Court on the ground that the House could not determine the matter until it had the court proceedings.[1065]
Marshall's patience was exhausted. He thought this procrastinating maneuver a Republican trick to keep the whole matter open until after the coming presidential campaign,[1066] and he spoke his mind sharply to the House.
”Let gentlemen recollect the nature of the case,” exclaimed Marshall; ”the President of the United States is charged by this House with having violated the Const.i.tution and laws of his country, by having committed an act of dangerous interference with a judicial decision--he is so charged by a member of this House. Gentlemen were well aware how much the public safety and happiness depended on a well or a misplaced confidence in the Executive.
”Was it reasonable or right,” he asked, ”to receive this charge--to receive in part the evidence in support of it--to receive so much evidence as almost every gentleman declared himself satisfied with, and to leave the charge unexamined, hanging over the head of the President of the United States ... how long it was impossible to say, but certainly long enough to work a very bad effect? To him it seemed of all things the most unreasonable and unjust; and the mischief resulting therefrom must be very great indeed.”
The House ought to consider the evidence it already had; if, on such examination, it appeared that more was needed, the matter could then be postponed. And, in any event, why ask the President to send for the court proceedings? The House had as much power to procure the papers as the President had. ”Was he [the President] to be a _menial_ to the House in a business wherein himself was seriously charged?”[1067]
Marshall was aroused. To his brother he thus denounces the tactics of the Republicans: ”Every stratagem seems to be used to give to this business an undue impression. On the motion to send for the evidence from the records of South Carolina altho' it was stated & prov'd that this would amount to an abandonment of the enquiry during the present session & to an abandonment under circ.u.mstances which would impress the public mind with the opinion that we really believed Mr. Livingston's resolutions maintainable; & that the record could furnish no satisfaction since it could not contain the parol testimony offered to the Judge & further that it could not be material to the President but only to the reputation of the Judge what the amount of the testimony was, yet the debate took a turn as if we were precipitating a decision without enquiry & without evidence.”[1068]
This Republican resolution was defeated. So was another by Gallatin asking for the papers in the case of William Brigstock, which the Republicans claimed was similar to that of Jonathan Robins. Finally the main question came on. For two hours Gallatin made an ingenious argument in support of the Livingston resolutions.[1069]
The next day, March 7, Marshall took the floor and made the decisive speech which put a period to this partisan controversy. He had carefully revised his argument,[1070] and it is to this prevision, so unlike Marshall's usual methods, that we owe the perfection of the reporter's excellent transcript of his performance. This great address not only ended the Republican attack upon the Administration, but settled American law as to Executive power in carrying out extradition treaties.
Marshall's argument was a mingling of impressive oratory and judicial finality. It had in it the fire of the debater and the calmness of the judge.
It is the highest of Marshall's efforts as a public speaker. For many decades it continued to be published in books containing the masterpieces of American oratory as one of the best examples of the art.[1071] It is a landmark in Marshall's career and a monument in the development of the law of the land. They go far who a.s.sert that Marshall's address is a greater performance than any of the speeches of Webster, Clay, Sumner, or other American orators of the first cla.s.s; and yet so perfect is this speech that the commendation is not extreme.
The success of a democratic government, said Marshall, depended not only on its right administration, but also on the public's right understanding of its measures; public opinion must be ”rescued from those numerous prejudices which ... surround it.” Bayard and others had so ably defended the Administration's course that he would only ”reestablish” and ”confirm” what they had so well said.
Marshall read the section of the Jay Treaty under which the President acted: This provided, said he, that a murderer of either nation, fleeing for ”asylum” to the other, when charged with the crime, and his delivery demanded on such proof as would justify his seizure under local laws if the murder had been committed in that jurisdiction, must be surrendered to the aggrieved nation. Thus Great Britain had required Thomas Nash at the hands of the American Government. He had committed murder on a British s.h.i.+p and escaped to America.
Was this criminal deed done in British jurisdiction? Yes; for ”the jurisdiction of a nation extends to the whole of its territory, and to its own citizens in every part of the world.... The nature of civil union” involves the ”principle” that ”the laws of a nation are rightfully obligatory on its own citizens in every situation where those laws are really extended to them.”
This ”is particularly recognized with respect to the fleets of a nation on the high seas.” By ”the opinion of the world ... a fleet at sea is within the jurisdiction of the nation to which it belongs,” and crimes there committed are punishable by that nation's laws. This is not contradicted by the right of search for contraband, as Gallatin had contended, for ”in the sea itself no nation has any jurisdiction,” and a belligerent has a right to prevent aid being carried to its enemy. But, as to its crew, every s.h.i.+p carried the law of its flag.
Marshall denied that the United States had jurisdiction, concurrent or otherwise, over the place of the murder; ”on the contrary, no nation has any jurisdiction at sea but over its own citizens or vessels or offenses against itself.” Such ”jurisdiction ... is personal, reaching its own citizens only”; therefore American authority ”cannot extend to a murder committed by a British sailor on board a British frigate navigating the high seas.” There is no such thing as ”common [international]
jurisdiction” at sea, said Marshall; and he exhaustively ill.u.s.trated this principle by hypothetical cases of contract, dueling, theft, etc., upon the ocean. ”A common jurisdiction ... at sea ... would involve the power of punis.h.i.+ng the offenses ... stated.” Piracy was the one exception, because ”against all and every nation ... and therefore punishable by all alike.” For ”a pirate ... is an enemy of the human race.”
Any nation, however, may by statute declare an act to be piratical which is not so by the law of nations; and such an act is punishable only by that particular state and not by other governments. But an act universally recognized as criminal, such as robbery, murder, and the like, ”is an offense against the community of nations.”
The Republican contention was that murder and robbery (seizure of s.h.i.+ps) const.i.tuted piracy ”by the law of nations,” and that, therefore, Nash should have been indicted and tried by American authority as a pirate; whereas he had been delivered to Great Britain as a criminal against that nation.
But, said Marshall, a single act does not necessarily indicate piratical intent unless it ”manifests general hostility against the world”; if it shows an ”intention to rob generally, then it is piracy.” If, however, ”it be merely mutiny and murder in a vessel with the intention of delivering it up to the enemy, it” is ”an offense against a single nation and not piracy.” It was only for such murder and ”not piracy”
that ”Nash was delivered.” And, indisputably, this was covered by the treaty. Even if Nash had been tried and acquitted for piracy, there still would have remained the crime of murder over which American courts had no jurisdiction, because it was not a crime punishable by international law, but only by the law of the nation in whose jurisdiction the crime was committed, and to which the criminal belonged.