can increase or diminish the list of offenses thus punishable. *This statute, it is certain, does not [*10 change the nature of piracy; but all treasons, It had been observed by his colleague (Mr. felonies, robberies, murders and confederacies Nicholas), for the purpose of showing that the committed in or upon the sea, are not declared distinction taken on this subject by the gentle- to have been, nor are they, piracies. If a man man from Delaware (Mr. Bayard) was inaccu- be indicted as a pirate, the offense must be rate, that any vessel robbed on the high seas shown to have been piracy before the statute; could be the property only of a single nation, but if he be indicted for treason, felony, roband being only an offense against that nation, bery, murder, or confederacy committed at could be, on the principle taken by the opposers sea, whether such offense was or was not a of the resolutions, no offense against the law of piracy, he shall be punished in like manner as nations; but in this his colleague had not ac- if he had committed the same offense on land. curately considered the principle. As a man, The passage cited from 1 Woodeson, 140, is a who turns out to rob on the highway, and full authority to this point. Having stated that forces from a stranger his purse with a pistol offenses committed at sea were formerly triable at his bosom, is not the particular enemy of that before the Lord High Admiral, according to stranger; but alike the enemy of every man who the course of the Roman civil law, Woodeson carries a purse, so those who, without a com- says, "but by the statute 27 H. VIII., ch. 4, and mission, rob on the high seas, manifest a tem-28 H. VIII., ch. 15, all treasons, felonies, piper hostile to all nations, and therefore become "racies, and other crimes committed on the the enemies of all. The same inducements "sea, or where the admiral has jurisdiction, which occasion the robbery of one vessel, exist "shall be tried in the realm as if done on land. to occasion the robbery of others, and therefore But the statutes referred to affect only the 9*] the single offense is an offense *against the "manner of the trial so far as respects piracy. whole community of nations, manifests a tem- "The nature of the offense is not changed. per hostile to all, is the commencement of an "Whether a charge amounts to piracy or not, attack on all, and is consequently, of right, must still depend on the law of nations, expunishable by all. cept 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." His colleague had also contended, that all the offenses 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 offense 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 offense 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 offenses 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, de"termined and judged in such shires, &c., in "like form and condition as if any such offense "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 offenses "done upon the land." 66 66 This passage proves not only that all offenses 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 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 offenses against another nation, and that the United States can only punish offenses against *their own [*11 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 Hermoine, 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 offense 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 offense may be completed by a single act; but it, depends on the nature of that act. If it be such as manifests general 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 offense against a single nation, and not | any treason, and not communicating the same, 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 the 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 offense. 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 twentyseventh 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 ac12*] quitted 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. This 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. 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 it- [*13 self? 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 offenses 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 com mander, 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 offense against the act of Congress, punishable in the courts of the It has already been shown that the legisla- United States? On this extended construction tive jurisdiction of a nation extends only to its of the general terms of the section, not only own territory, and to its own citizens, wherever the crew of one of the foreign vessels forcing they may be. Any general expression in a their captain to surrender to another, would legislative act must, necessarily, be restrained incur the penalties of the act, but if, in the to objects within the jurisdiction of the legislate action between the gallant Truxton and lature 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. a 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. Marshall said, had cited and particularly relied on the ninth section of the act. That section declares, *that if [*14 a citizen shall commit any of the enumerated piracies, or any act 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 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. 14 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. 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 offenses 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 reso-dent was improper. lutions. It has also been contended, that the question of jurisdiction was decided at Trenton, by receiving indictments against persons there arraigned for the same offense, 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. 15*] *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. *But it has been contended, that al- [*16 though 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 Presi This, Mr. Marshall 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? The gentleman from New York had 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 he examined that section, it would 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 and equity, arising under the constitution, laws and treaties of the United States; but the resolutions declare the judicial power to extend to all questions arising under the constitution, It would be assuming a very extraordinary treaties and laws of the United States. The principle indeed, to say that words inserted in difference between the constitution and the an indictment for the express purpose of as-resolutions was material and apparent. A case suming 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 TrenThe indictments ton, ought to be noticed. charge the persons to have been within the peace, and the 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 govern ment. in law or equity was a term well understood, 133 tution, in resolutions affecting substantially to unite it, was not less worthy of remark for being unintentional. It manifested the course of reasoning by which the gentleman had himself been misled, and his judgment betrayed into the opinions those resolutions expressed. By extending the judicial power to all cases in law and equity, the constitution had never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit. A case in law or equity proper for judicial decision may arise under a treaty, where the rights of individuals acquired or secured by a treaty are to be asserted or defended in court. As under the fourth or sixth article of the treaty of peace with Great Britain, or under those articles of our late treaties with France, Prussia, and other nations, which secure to the subjects of those nations their property within the United States; or, as would be an article which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the United States. But the judicial power cannot extend to political compacts; as, the establishment of the boundary line between the American and British dominions; the case of the late guarantee in our treaty with France, or the case of the delivery of a murderer under the twenty-seventh article of our present treaty with Britain. The gentleman from New York has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign government? Permit me, said Mr. Marshall, but not triumphantly, to retort the question-By what authority can any court render such a judgment? What power does a court possess to seize any individual, and determine that he 18*] shall be adjudged by a foreign tribunal? Surely our courts possess no such power, yet they must possess it, if this article of the treaty is to be executed by the courts. Gentlemen have cited and relied on that clause in the constitution which enables Congress to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, together with the act of Congress declaring the punishment of those offenses, as transferring the whole subject to the courts. But that clause can never be construed to make to the government a grant of power, which the people making it did not themselves possess. It has already been shown that the people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a government for themselves, they cannot have passed this jurisdiction to that government. The law, therefore, cannot act upon the case. But this clause of the constitution cannot be considered, and need not be considered, as affecting acts which are piracy under the law of nations. As the judicial power of the United States extends to all cases of admiralty and marine jurisdiction, and piracy under the law of nations is of admiralty and maritime jurisdiction, punishable by every nation, the judicial power of the United States, of course, extends to it. On this principle the courts of admiralty under the confederation took cognizance of piracy, although there was no express power in Congress to define and punish the offense. But the extension of the judicial power of the United States to all cases of admiralty and maritime jurisdiction must necessarily be understood with some limitation. All cases of admiralty and maritime jurisdiction which, from their nature, are triable in the United States, are submitted to the jurisdiction of the courts of the United States. There are cases of piracy by the law of nations, and cases within the legislative jurisdiction of the nation. The people of America possessed no other power over the subject, and could, consequently, transfer no other to their courts; and it has already been proved, that a murder committed on board a foreign ship of war is not comprehended within this description. The consular convention with France has also been relied *on, as proving the act of [*19 delivering up an individual to a foreign power, to be in its nature judicial, and not executive. The ninth article of thatc onvention authorizes the consuls and vice-consuls of either nation to cause to be arrested all deserters from their vessels, for which purpose the said consuls and vice-consuls shall address themselves to the courts, judges, and officers competent." This article of the convention does not, like the twenty-seventh article of the treaty with Britain, stipulate a national act, to be performed on the demand of a nation; it only authorizes a foreign minister to cause an act to be done, and prescribes the course he is to pursue. The contract itself is, that the act shall be performed by the agency of the foreign consul, through the medium of the courts; but this affords no evidence that a contract of a very different nature is to be performed in the same manner. It is said that the then President of the United States declared the incompetency of the courts, judges, and officers, to execute this contract, without an act of the legislature. But the then President made no such declaration. He has said that some legislative provision is requisite to carry the stipulations of the convention into full effect. This, however, is by no means declaring the incompetency of a department to perform an act stipulated by treaty, until the legis lative authority shall direct its performance. It has been contended, that the conduct of the executive on former occasions, similar to this in principle, has been such as to evince an opinion, even in that department, that the case in question is proper for the decision of the courts. The fact adduced to support this argument, is the determination of the late President on the case of prizes made within the jurisdiction of the United States, or by privateers fitted out in their ports. The nation was bound to deliver up those prizes, in like manner as the nation is now bound to deliver up an individual demanded under the twenty-seventh article of the treaty with Britain. The duty was the same, and devolved on the same department. *In quoting the decision of the execu- [*20 tive on that case, the gentleman from New York has taken occasion to bestow a high encomium on the late President, and to consider his conduct as furnishing an example worthy the imitation of his successor. It must be cause of much delight to the real friends of that great man, to those who supported his administration while in office from a conviction of its wisdom and its virtue, to hear the unqualified praise which is now bestowed on it by those who had been supposed to possess different opinions. If the measure now under consideration shall be found, on examination, to be the same in principle with that which has been cited by its opponents as a fit precedent for it, then may the friends of the gentleman now in office indulge the hope, that when he, like his predecessor, shall be no more, his conduct, too, may be quoted as an example for the government of his successors. bunal shall settle the fact. In this respect a doubt might exist in the case of prizes, which could not exist in the case of a man. Individuals on each side claimed the property, and therefore their rights could be brought into court, and there contested as a case in law or equity. The demand of a man made by a nation stands on different principles. Having noticed the particular letters cited by the gentleman from New York, permit me now, said Mr. Marshall, to ask the attention of the house to the whole course of executive conduct on this interesting subject. It is first mentioned, in a letter from the Secretary of State to Mr. Genet, of the 25th of June, 1793. In that letter, the secretary states a consultation between himself and the secretaries of the treasury and war (the President being absent), in which (so well were they assured of the President's way of thinking in those cases) it was determined, that the vessels should be detained in the custody of the consuls in the ports, "until the government of the United States "shall be able to inquire into, and decide on the fact." The evidence relied on to prove the opinion of the then executive on the case, consists of two letters from the Secretary of State-the one of the 29th of June, 1793, to Mr. Genet, and the other of the 16th of August, 1793, to Mr. Mor-" ris. In the letter to Mr. Genet, the Secretary says, that the claimant having filed his libel against the ship William in the Court of Admiralty, there was no power which could take the vessel out of court until it had decided against its own jurisdiction; that having so decided, the complaint is lodged with the executive, and he asks for evidence to enable that department to consider and decide finally on the subject. In his letter of the 12th of July, 1793, the secretary writes, the President has determined to refer the questions concerning prizes "to persons learned in the laws." And he requests that *certain vessels enumerated in the [*22 letter should not depart "until his ultimate determination shall be made known." In his letter of the 7th of August, 1793, the secretary informs Mr. Genet, that the President considers the United States as bound "to effectuate the restoration of, or to make compen"sation for, prizes which shall have been made of any of the parties at war with France, "subsequent to the 5th day of June last, by privateers.' It will be difficult to find in this letter an ex ecutive opinion, that the case was not a case for executive decision. The contrary is clearly" avowed. It is true, that when an individual claiming the property as his, had asserted that" privateers fitted out of our ports." That it is claim in court, the executive acknowledges in consequently expected that Mr. Genet will cause itself a want of power to dismiss or decide upon restitution of such prizes to be made. And that the claim thus pending in court. But this ar- the United States will cause restitution" to be gues no opinion of a want of power in itself to made of all such prizes as shall be hereafter decide upon the case, if, instead of being car-brought within their ports by any of the said ried before a court as an individual claim, it is brought before the executive as a national de- In his letter of the 10th of November, 1793, the mand. A private suit instituted by an individ- secretary informs Mr. Genet, that, for the purual, asserting his claim to property, can only be pose of obtaining testimony to ascertain the fact controlled by that individual. The executive of capture within the jurisdiction of the United can give no direction concerning it. But a pub- States, the governors of the several states were 21*] lic prosecution, *carried on in the name requested, on receiving any such claim, immeof the United States, can without impropriety diately to notify thereof the attorneys of their be dismissed at the will of the government. The several districts, whose duty it would be to give opinion, therefore, given in this letter is unques-notice "to the principal agent of both parties, tionably correct; but it is certainly misunder- and also to the consuls of the nations intereststood, when it is considered as being an opinion that the question was not in its nature a question for executive decision. In the letter to Mr. Morris, the secretary asserts the principle, that vessels taken within our jurisdiction ought to be restored, but says it is yet unsettled whether the act of restoration is to be performed by the executive or judicial department. ed, and to recommend to them to appoint by mutual consent arbiters to decide whether the capture was made within the jurisdiction of 'the United States, as stated in my letter of "the 8th instant, according to whose award the governor may proceed to deliver the vessel "to the one or the other party. "If either party refuse to name arbiters, then the attorney is to take depositions on notice, which he is to transmit for the information and decision of the President." This prompt procedure is the more to be insisted on, as it will enable the President, by an immediate delivery of "the vessel and cargo to the party having title, "to prevent the injuries consequent on long 'delay." The principle, then, according to this letter, is not submitted to the courts-whether a vessel" captured within a given distance of the American coast was or was not captured within the jurisdiction of the United States, was a question not to be determined by the courts, but by the executive. The doubt expressed is, not what tribunal shall settle the principle, but what tri 66 In his letter of the 22d of November, 1793, |