John Marshall

by James Bradley Thayer

After Washington’s death in 1799, Marshall, in a short and well-known speech, moved the resolution of the House of Representatives.

A little afterwards he made a great and admirably thorough address in a matter which then deeply affected the public mind; from this, his greatest public speech,[17] a quotation is given below. It was made March 4, 1800, in defense of the President’s action in the case of Thomas Nash, alias Jonathan Robbins. This person, a British subject, but claiming to be an American citizen, and to have been impressed into the British navy, was charged with piracy and murder on board a British ship of war in 1791. Being found in Charleston, S. C., he was arrested in 1799, at the instance of the British consul, and held to await an application for his extradition under article 27 of the treaty with Great Britain of 1795. That article bound the two countries reciprocally to deliver up, on request of the other, persons charged with murder committed within the jurisdiction of that other. Evidence of criminality was first to be furnished, such as would justify commitment for trial on the same charge in the country where the accused was found.

An application for extradition was made to the federal authorities in Charleston, but at their suggestion this was transferred to the President, through the Secretary of State. The Secretary informed Bee, the United States District Judge, of the President’s “advice and request” that Nash should be delivered up, at the same time referring to the clause in the treaty as to the necessary evidence of criminality.[18] The judge on July 1, 1799, informed the Secretary that he had notified the British consul that on the production of such evidence, the prisoner would be delivered up when the consul was ready to receive him. The delivery was made; and on September 9 of the same year, the British admiral was able to inform the British Minister that Nash “has been tried at a court martial, and sentenced to suffer death, and afterwards hung in chains; which sentence has been put into execution.”

These events were used with great effect by the political opponents of the administration. When Congress met, the President was called upon by the House of Representatives for the papers relating to them; and when they were sent in, Edward Livingston, of New York, submitted resolutions condemning the action of the executive, on the ground that the determination of the questions involved in the case “are all matters exclusively for judicial inquiry;” that the acts of the President “are a dangerous interference of the executive with judicial decisions;” and that the compliance of the district judge “is a sacrifice of the constitutional independence of the judicial power.” After a full debate, these resolutions were negatived by a decided vote. Marshall’s very able argument vindicated the action taken, and laid down principles which have ever since governed the course of the government in such cases.

The following passages will afford a specimen of the style and method of this address, a style and method which were characteristic of all Marshall’s work:—

“The same argument applies to the observations on the seventh article of the amendment to the Constitution. That article relates only to trials in the courts of the United States, and not to the performance of a contract for the delivery of a murderer not triable in those courts.

“In this part of the argument, the gentleman from New York [Mr. Livingston] has presented a dilemma, of a very wonderful structure indeed. He says that the offense of Thomas Nash was either a crime or not a crime. If it was a crime, the constitutional mode of punishment ought to have been observed; if it was not a crime, he ought not to have been delivered up to a foreign government, where his punishment was inevitable.

“It has escaped the observation of that gentleman that if the murder committed by Thomas Nash was a crime, yet it was not a crime provided for by the Constitution or triable in the courts of the United States; and that if it was not a crime, yet it is the precise case in which his surrender was stipulated by treaty. Of this extraordinary dilemma, the gentleman from New York is himself perfectly at liberty to retain either form.

“He has chosen to consider it as a crime, and says it has been made a crime by treaty, and is punished by sending the offender out of the country. The gentleman is incorrect in every part of his statement. Murder on board a British frigate is not a crime created by treaty. It would have been a crime of precisely the same magnitude had the treaty never been formed. It is not punished by sending the offender out of the United States. The experience of the unfortunate criminal, who was hung and gibbeted, evinced to him that the punishment of his crime was of a much more serious nature than mere banishment from the United States.

“The gentleman from Pennsylvania [Mr. Gallatin] and the gentleman from Virginia [Mr. Nicholas] have both contended that this was a case proper for the decision of the courts, because points of law occurred, and points of law must have been decided in its determination. The points of law which must have been decided are stated by the gentleman from Pennsylvania to be, first, a question whether the offense was committed within the British jurisdiction; and, secondly, whether the crime charged was comprehended within the treaty.