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 Bobbins, a mariner, had that day deposed on oath before him, that he, the said Jonathan Bobbins, 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 Her-mione, 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 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 confine *832 ment 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 pro-vided 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 rep-robated 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 of-fences; 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 offeDee, 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 1 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 aft-erwards 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 *833 mast have been tried here. With respect to the meaning of the word “jurisdiction,” I think the case quoted from Yatt. Law Nat. bk. 1, c. 19, § 216, is conclusive, and this is corroborated by Ruth. Inst. bk. 2, c. 9, as to the jurisdiction 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 nest 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 Britannic 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 cus-t jdy 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.

The judgment being pronounced, the court was immediately adjourned; the irons were replaced on the prisoner, and he was delivered over by the constables, to a detachment of federal troops, who had before been placed under arms opposite the court house, and had continued there during the sitting of the court. The troops immediately delivered up the prisoner to Lieut. Jump, of his Britannic majesty’s sloop Sprightly, then lying in this harbour, and which sailed with the prisoner on Saturday morning for Jamaica.

NOTE.

Judge Bee’s decision, together with the action of the president that led to it, added a fresh stimulus to the then already too feverish state of public sentiment.

The Examiner, the organ of the Virginia Republicans, began by a series of attacks, said to emanate from Mr. Madison, but which unfortunately are not preserved. This was answered in the Virginia Federalist by Mr. Marshall, as follows:

“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 *834 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 of-fences 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 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, 1 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 1 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 such 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 bo ndmilted 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 *835 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 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 eireumstanees 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 ease? 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.

The opposition view was fully set forth in the following letter, written, as afterwards appeared, by Mr. Charles Pinckney, then a senator from South Carolina, which first was published in the newspapers, and subsequently was circulated, with one or two others, in a pamphlet, signed—“A South Carolina Planter”:

“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, 1 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, thatto 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 ease, 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 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 ofipapers, 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, *836 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 whomsover 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 G-reat 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 tom 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. This I will endeavour to prove from the examination of the affidavits, and the nature of the testimony required by our laws, as sufficient even to justify the putting a citizen upon his trial in this country, without adding to it the inexpressible disgrace and danger of sending him to be tried by a foreign tribunal. The first affidavit is William Portlock. on which I suppose the judge could not have rested at all: he appears from his age, and the statement in the affidavit, to have been a sailor lad as little known in this country as Robbins himself, and to have been so illiterate as not to have been able to write his name. This lad says, he heard a person who answered to the name of Nathan Robbins, declare he was boatswain’s mate on board the Hermoine, when she was carried into the port of ‘Gavilla;’ and that sometimes when he was drunk, he would mention the Hermoine. clench his fist, and say ‘Bad luck to her.’. Prom this statement it results that this Portlock was an illiterate sailor lad, so ignorant as not to know the name of the port the frigate was carried into. It dees not appear that he was shown the prisoner, or that he could swear that Jonathan Robbins was the person he knew on board the Tanner’s Delight; he avowedly knew nothing of himself. He does not say the person he spoke of confessed to him that he was concerned in the murder or piracy charged on him. From the youth, ignorance and situation of Portlock; from the vague and uncertain account he gave, I must still be of the opinion that the judge could not have rested at all on his testimony; he knew, that even if Portlock had sworn positively to the identity of Robbins, and the latter had when sober made any confession of guilt to him, that it was the duty of a judge not to have attended to it. Any confession of a criminal must be made in a particular manner, before magistrates, or in open court, to operate to conviction. An elegant writer, treating on this subject, says, Í3?he confession of a criminal, when taken even before a magistrate, can rarely be turned against him, without obviating the end for which he must be supposed to have made it. Besides, we have known instances of murders avowed, which were never committed; of things stolen, which had never quitted the possession of the owner.’

“The evidence of words alleged to have been spoken by the person accused, and connected with the criminality of the charge, ought also to be received with great distrust. Such words are either spoken in the zeal of unsuspicious confidence, and cannot be repeated without a breach of private faith, which detracts much from the credibility of the witness; or, in the unguarded hours of boasting dissipation, in which case they are not unlikely to be false in themselves, and very likely to be falsely repeated. In every situation, therefore, in which Portlock can be received as a witness, or the testimony he gave examined, it must at once be seen, that it was not such as a grand jury could have found a bill on, or such as will be considered sufficient to justify the delivery the judge has ordered. It must, therefore, have been altogether on the single testimony of Lieutenant Forbes he ordered it, and this remains to be examined. The whole of Lieutenant Forbes’ examination says, that a man confined in the jail of this district, who calls himself Robbins, but whose real name he believes to be Thomas Nash, was a seaman for a' certain time on board the Hermione; that after he left the Hermione, she was seized by the crew and carried into an enemy’s port; and that he has heard from the depositions of others in courts martial.' that the man whom he believes .to be named Thomas Nash, was a principal in the commission of the said acts of piracy and murder, &c. From this account, Mr. Forbes has confessed that he knows nothing of himself—that he was not sure what the *837 prisoner’s name was, but that he believes it to be Thomas Nash, and what is extremely important, he does not attempt to say he is an Irishman, and not an American, or that he was not impressed into the British service. But that from the depositions of others, and what he has heard, he considers him as one of the principals in the said act. He does not explain what is the nature of the testimony he has heard on the subject, as it respects Nash— by whom priven—whether by respectable or unprincipled witnesses, by such as were intimidated and forced into a confession of anything, or by ignorant and illiterate men (without a jury to interpose their lenient and impartial decisions! before a court of strict military officers, the severity and despatch of whose decrees they are every moment fearing to experience themselves. His testimony, therefore, being altogether hearsay, ought, in strictness of law, to have operated less forcibly upon the mind of the judge than even Portlock’s, for however more respectable as an officer and a gentleman Mr. Forbes is. yet, when he tells you himself he was not on board the frigate when the murder and piracy were committed, and that he knows nothing but by hearsay, either from the relations or depositions of others, he at once comes within that description of testimony, which the laws of England, and the decisions of the best judges, and our laws borrowed from them, forbid either a judge or a jury to receive in any case affecting the life or limb of a subject of the one, or a citizen of the other.

“This being the state of the evidence before the judge, two important questions arise: (1) Whether the judge was strictly authorized, and if there was a doubt, whether he ought to have decided alone upon this question; and, (2). whether in deciding lie had any, and what discretion, as to the nature of the evidence to be required, and whether his decision was such as the security of the personal privileges of our citizens, or the policy of the United States demanded.

“To the first question—It appears that, from laws of congress respecting the delivery of fugitives from justice from one state to another being silent, the judge was of opinion, on the application being first made to him. that it was a matter for executive interference; but that upon reconsideration, as the law and the treaty were silent, he was under the necessity of deciding. I think a further view of this subject must have, by this time, convinced him that he was mistaken, and that no possible construction that he can give to the 3d article of the constitution, can justify the opinion he formed of his having a right to decide on this case. The article respecting the judicial, after vesting in congress the right to establish superior and inferior tribunals, defines the important powers they shall exercise, but leaves the boundaries of each to be ascertained by congress. They have accordingly detailed the duties and fixed the limits of the supreme, circuit, and district courts in a manner so clear, that it is astonishing a doubt should have for a moment arisen as to the court really having jurisdiction to decide this question. The district courts have no right to decide on any crime, where the punishment is to exceed thirty stripes, one hundred dollars fine, and six months imprisonment: in any case exceeding these, and particularly for capital offences, however the judge, like any other magistrate, may, on proper testimony, commit for trial, here he has no right to decide: this authority is given to the circuit court. Had, therefore, Robbins been committed for trial in this state, could Mr. Bee have tried him? Certainly not. He must have remained to be tried by the circuit court. With what authority, therefore, could he decide upon a question which not only went to divest the prisoner of his right of citizenship, banish him from his country, and deprive him of the trial by jury, but also to dispossess the circuit court of a right to decide upon as new, delicate, and important a subject as ever came before them: one which I hoped would have been reserved for much more ample discussion and consideration, and in which I should have supposed the public would have been pleased to hear the opinions of all the most experienced counsel at the bar, and to have seen decided by the supreme court. It is no answer to say that the 27th article of the treaty speaks of commitment, because the latter clause qualifies it, and makes this commitment depend upon the evidence of criminality according to our laws; and there is surely an astonishing difference between a mere commitment for trial, and a delivery over to a foreign tribunal. Nor is it more just to say that the law of congress respecting fugitives from justice in the different states makes them deliverable on a bill found or by an affidavit, because they are only removed from one state to another, where the same laws, same right of jury and same forms exist: and what is equal to all, the invaluable right of habeas corpus, where a prisoner, improperly committed, can, after delivery and removal, demand to be brought before a judge, and have ihe reasons of his confinement examined. But where is the habeas corpus that can, in this situation, reach an unfortunate American? However slight or unfounded the accusation against him, or erroneous the opinion of a single judge who delivered him may be. when once delivered he is forever deprived of this invaluable privilege. The moment the order is given, he is hurried in chains on board an armed cutter, from whence, on his arrival in a distant and foreign port, he is immediately transferred to another vessel, on whose deck, after a summary military trial, he is doomed to meet his fate.

“I will pause here, and ask you, my countrymen. if there is no difference between this and an ordinary commitment by a magistrate for trial here? Your own good sense, and the security you must wish to the rights of your fellow-citizens and yourselves, will best dictate the answer you should give.

“There is another important reason why the judge ought not. upon this occasion, singly to have decided. I think if it had occurred to him he certainly would have postponed the decision until the meeting of the circuit court. It is this: That however all nations may have agreed upon the propriety of delivering up fugitives from justice, in the case of forgery, yet that in times of war, and particularly in revolutions, when different nations hold such opposite opinions upon what are piracy or murder,- and what justifiable resistance to tyranny and oppression, whqn it is so extremely difficult, and requires all the acuteness, and all the knowledge and experience of the ablest judges to draw the line between them, most certainly in this country our judges ought not to have decided in cases that may hereafter be quoted as precedents, without , the utmost caution and deliberation. They should have reflected, that in all trials where there was a claim of birthright or citizenship on the part of the accused, and where there was not the fullest and most positive proof of his criminality, that it was safest to try him here.i In this instance they ought certainly to have *838 done so. The testimony was slight and trivial; it was nearly all hearsay. It was indispensable, therefore, to justice, that the prisoner should have had an opportunity of sending to New York and Connecticut to prove, if he could, his birthright and citizenship, in the case of such delicate importance, and of such slight proof. Could the British government have censured the procedure? It was as easy for them to send their witnesses here, as to have sent an armed cutter to carry him away. Justice would have been done to all parties; and venerating, as their nation is said to do. the trial by jury, a generous and free people would have applauded the respect that was paid to it here.

“To the second question it has been already observed, that this was a new case, in which congress had not legislated, and the more, that if the judge thought proper to assume the power of deciding, he was bound by no particular act of restriction, but at liberty to declare the nature of the evidence on which, in his opinion, so important a decision should have been made. Supposing him, as the district judge, to have been at all authorized to decide, his discretionary power certainly would have extended to this; and the point then for consideration is. that having the power to determine on what evidence so important an order should be founded, what ought to have been his conduct, and what the nature of the proof he should have required? My own opinion. decidedly is, that, he should at least have required such proofs, as a grand jury would have thought sufficient to find a bill. Perhaps he ought to have gone further, and before he consented to his removal into a foreign country and military tribunal, he should have demanded complete proof of his guilt, such as would have induced a petit jury to convict him. But that he should at least have required the proof necessary to find a bill, no one, I think, will contend. The inquiry then is, what is the proof which the English laws and the laws of this country require to enable a grand jury to find a bill? Although I think there are many defects in the administration of justice, such, for instance, as the dependence of the judges on the crown, from which they receive their appointment, and to whom they may be looking up for further promotion and honour; that of being removable by an address from parliament which a minister can always command, and whose views and wishes, therefore, none else but an inflexible magistrate will dare oppose; and, particularly, in the sheriff's having the power to summon whom they please as jurors, and to pack them, if they think proper. Yet there is one part of their system which I have always admired, that is, the institution'of a grand jury. Their laws have wisely and humanely considered, that next to the disgrace of being convicted of an infamous offence, is the dishonour of being charged with one; and therefore, before they would submit a subject to the danger and inconvenience of being publicly arraigned, an impartial jury are on their oaths to declare the just cause for accusation. We have copied their system and improved upon it. Our juries cannot be packed: they are drawn by lot, and, in my judgment, criminal trials in this state, are as perfect as they can be. The nature of the evidence which can alone be properly offered to a grand jury, although not entirely conclusive as to the actual guilt of the prisoner, must be such, as if offered to the petit jury, would be legal evidence. Even examinations taken agreeably to 2 & 3 Philip & Mary, c. 10 (of force in this state), can only be given in evidence before a jury, when the court is satisfied the witness is dead, unable to travel, or kept away by the means or procurements of the prisoner. No other examinations can be given, or ought to be received in evidence; and a presentment founded upon any other, would not be that due presentment, without which a citizen’s life should not be put in danger.

“The above opinion is founded on the highest law authorities. A learned English judge, speaking on this subject, says: ‘The evidence to be given ought to arise to a high degree of probability. Absolute positive proof is not to be insisted uiion before a grand jury, and slight trivial suspicion and hearsay evidence, are not sufficient to ground such presentments upon; for although they are only in the nature of a charge, and do not carry a conviction, yet many inconveniences as well as expense and danger attend a charge of this sort, which no subject ought to undergo, but upon legal and sufficient evidence.’ This is the law of England on the subject of legal evidence, sufficient to enable a grand jury to find a bill. Our law is taken from, and founded upon it; and the public can now judge, whether the testimony submitted in this case, was such as ought, in one of so much importance and danger to the prisoner, to have authorized his delivery.

“Some distinctions are attempted to be drawn respecting territory and jurisdiction, the counsel for the prisoner having contended, that the treaty entirely alluded to the peculiar exclusive jurisdiction of each. I have no doubt, in my own mind, that Mr. Jay meant no other than the exclusive territorial jurisdiction of each nation. He seems to have carefully omitted the word ‘piracy,’ aware of the difficulty I have before mentioned, of distinguishing between what may be called piracy, or what laudable resistance to violence and oppression. This omission, therefore, must at once convince us, that Mr. Jay could only have meant private acts of premeditated and deliberate murder, arising from motives unconnected with any attempts which individuals, coming to be the citizens of this country, might at any time make to free themselves from the tyranny of imprisonment. It is wonderful, however, to me. that Mr. Jay having seen the necessity of omitting piracy, did not also omit, at least during the existence of the war, murder also. For, in attempts to regain vessels or escape from im-pressment, it is certainly as difficult to distinguish what is murder, as what is piracy. Upon an occasion of such importance to the future safety of his fellow citizens, Mr. Jay-certainly ought, and will, I suppose, explain, what was his meaning in that article of the treaty. The quotations from Yattel and Rutherford did not apply at all. They are merely meant to refer to the cases of children born at sea, to ascertain, as Vattel does very properly, the right as subjects or citizens of the nation to which the vessel they are born in belongs. To suppose that Vattel designed to extend the doctrine, so far as to mean that the ships of a nation are, with respect to the space of water they cover on the ocean, its territory as to jurisdiction, as completely as its lands or rivers are, is to prove him not only guilty of an inconsistency unbecoming so well-informed an author, but to make him flatly contradict doctrines expressed in other parts of his work. He then contradicts that neutral vessels do not make free goods; and it is on his authority the British rest, more than any other, their right to search neutrals.

“Among the reasons which should make our judges very cautious in deciding against the claim of citizenship, by persons assuming to be *839 citizens, there is one peculiar to this country, and which should be carefully attended to; it is, the difficulty of distinguishing between the natives of some of the Middle and Southern states, and the natives of Ireland. Germany, and, in some instances, Scotland. The emigrations from those countries to America were formerly very great. Whole counties have been entirely settled by them, with scarce the in-termixture of any other The children hearing nothing but the language of their parents, will as naturally have the German, Irish, or Scotch accent, as if they were born in Europe. Instances of this sort must have occurred to any man, the least acquainted with these states. Indeed, it is well known that, in some places, many native Americans, born of German parents. have been met, who could not speak the English language. If, then, any of these men, born of German parents, have become seamen, will it not be impossible to distinguish between them and Europeans? And can there be a more fallacious mode of determining than from the voice or accent? I know of none more so than that of the countenance; and to neither should an acute or experienced judge ever attend.

“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 morq 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 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 risoner.’ because it has made some noise, and 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 uad 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 following are such of the documents appended to the above letter as are not contained in the president’s message of Feb. 7, 1800, given post):

Letter from Mr. Moodie, British consul at Charleston, to Judge Bee;

“Charleston, Nov. 27, 1799.

“Sir: In consequence of the very great opposition made to the delivering up under the 7th article of the treaty of amity. &c. Thomas Nash, alias Nathan Bobbins, one of the principal mutineers on board his Britannic majesty’s late ship Hermione, and of the numerous publications on that subject, as well in this as others of the United States, I wrote to Admiral Sir Hyde Parker, requesting he would send me minutes of the court martial, meaning to communicate the contents to you; but being informed that a compliance with such request would have been contrary to the rules of the British navy. I beg leave to enclose you a copy of the admiral’s answer, which I consider fully adequate to the purpose I intended. Whilst on this subject I cannot help remarking,that about the time my counsel moved for a habeas corpus, I happened to be in the court of common pleas, when Mr. Iver, a gentleman of the bar, addressed me. and mentioned his intention to oppose the delivery of the prisoner, *840 under an idea of his being a citizen of the United States of America: on this I expressed some surprise, that a person should at so late a day interest himself in behalf of the prisoner, particularly as his majesty’s cutter Sprightly had been here a very short time before for the purpose of carrying him off, and that it was from your opinion of the transaction being an executive one, that he was not then delivered up: he answered that Mr. Sasportas * had spoken to Colonel Moultrie and himself. I have the honor to be, sir, your most obedient humble servant, Benjamin Moodie.

“The Hon. Thomas Bee, Esq.”

Extract of a letter from. Admiral Sir Hyde Parker, to Benjamin Moodie, Esq., his Britannic majesty's consul in Charleston: dated on board the Abergavenny, in Port Royal har-bour, Jamaica, 13th September, 1799:

“Sir: I have received your letter of 21st of last month, with a copy of another (not yet re-» ceived) of the 3d of same month; and in answer to both, am to acquaint you that Nash has been executed and hung in chains, agreeably to the sentence of a court martial, and that he confessed himself to be an Irishman: and it further appears by the Hermione’s books † that he was born at Waterford; on the 21st of December, 1792, ‡ entered a volunteer on board the Dover; received three pounds bounty money, and was removed to the Hermione 28th January, 1793. and with respect to transmitting minutes of his trial, that is not in my power, but rests with the lords of the admiralty only.”

“I had the command of the boats of thesquad-ron on the day of his execution, and attended with them to see his body hung in chains, agreeably to an order for that purpose, from Sir Hyde Parker, Kt., commander-in-chief. &c., &c., at Jamaica. Geo. Hans Blake,

“Late commander of his majesty’s sloop L’Am-eranthe.”

“The foregoing was duly attested before me this 29th November, 1799.

“John Mitchell, Q. U.”

Letter from Mr. Moultrie to Mr. Moodie:

“To Benjamin Moodie, Esq., His Britannic Majesty’s Consul in Charleston—Sir: Having discharged my duty as a counsellor in the case of Jonathan Robbins, and having but little time to bestow on newspaper altercations, it was neither in my expectation nor my wish to be called forth further on this subject, and especially, as the author of a publication in a newspaper: but, sir, I find I am indebted to your politeness and moderation, or the zeal of your printer, (if he is your commentator,) for this occasion of my coming forth in this publication. In your letter of the 27th ultimo, to Judge Bee, respecting the case of Robbins, you conclude by saying you were informed by Mr. Iver, that Mr. Sasportas had spoken to Mr. Ker and myself as Robbins’ counsel, and with an asterism annexed to the word Sasportas, referring to an annotation below, this brilliant note is in italics, as follows:—‘Mr. Sasportas was the agent for the French Republic at the time their cruisers were permitted to sell their prizes in this port. The records of the District Court in Admiralty causes will prove this.’ If I understand right, and can read right, and if I understand the sentiments and views of the advocates of your nation in this country, (and think I have contemplated them since the dawn of our Revolution,) this bright note and those capitals are intended as an insinuation to the world, that French influence was at the bottom of Robbins’ defence, consequently was the mover of his counsellors. If I am mistaken, sir, in my sentiments you will pardon me, and I hope at the same time correct the error; but, sir, these sentiments are the natural impressions of your conduct, and I will hold them till properly effaced. The cry or insinuation, sir, of French influence may be an admirable engine of British policy in this country, and serve to promote many of their purposes, but as to myself or any injury it may work towards me in this case, you have lost your aim, sir. The mens conscia sibi recti defies your attack; your shaft has no sting, sir, its poison is ineffectual; and your own disappointment shall be your own punishment. When I was first called on in Robbins’ case I considered it generally and gave my opinion that I thought such was the prevailing influence of opinions and sentiments of those in power, that every effort would be vain; he had not then been represented to me as an American citizen, and I considered the case on the point of jurisdiction only. I gave it but a short consideration, and soon determined, and thought no more of it. Matters rested thus for some days—till the day before Robbins was tried. I was then accidentally informed, in conversation with a friend, that Robbins was an American. I was struck and alarmed to think I had deserted him. I immediately went to Mr. Ker and desired him to prepare himself for the argument next morning. I went home and considered the case, and met Mr. Ker in court the next day. I had never yet seen Robbins, nor had I ever any intercourse with him till he was pointed out to me, and I went up and spoke to him in court, the day of his trial; nor had I till then ever seen one of his papers. On my coming into court, amongst the first things I did, I asked the clerk for the papers, and amongst them found Robbins’ certificate of nativity and citizenship. I examined it and found it had every mark of authenticity; no erasure, no obliteration; that its colour and appearance were natural and correspondent with its date, and that the handwriting of the notary was genuine and can be proven here. But one thing further struck me: on inquiring of the clerk if this paper was found on Robbins when first taken, and being informed it was, I was of opinion it was genuine; and was clear if it was not, it was no fabrication in Charleston. Under these circumstances, sir, I undertook the cause of Robbins; a cause, sir. • in which the rights of mankind and those of my country were deeply involved; a cause, sir, which I held myself bound in duty, as an American, to defend and support; which pointed at the constitution and vital principle of American independence. And, give me leave further to tell you, that in this cause, I neither undertook it from French influence or an idea of advancing their interest, nor from the promise or expectation of any fee or reward, and that I never have received any such. Every one, sir, who knows me, knows my politics; they have been uniform since 1775, and I hope will continue so to my latest hour. I honour ■and respect all nations: but I hate tyrants, I love my country and will defend its freedom. I am, sir, with due consideration, your humble servant, Alexander Moultrie.”

Letter from Mr. Sasportas:

“Messrs. Freneau & Paine: The unexpected attack of Mr. Moodie, the British consul, in Timothy’s paper of Monday last, I am induced to notice, not from any apprehension of its injurious effects on the public mind, respecting my *841 •conduct in the case of Robbins, because the publication bears its own insignificance on the face ■of it; but. as he has thought proper to arraign ■the motives which induced me to employ counsel in his behalf, I shall briefly relate the circumstances which brought Robbins under my observation. Being drawn to serve as a grand juror for the district of Charleston, we were requested by the court to visit the jail, in order to make a report of the state of the same. In the exercise of this duty I saw Robbins, confined in irons;’ who communicated to me the cause of his commitment, and his defence to the charge, viz: that of his being an American citizen, impressed by the English. From his relation, and his certificate of citizenship then shown me, I was induced to employ counsel in his behalf, in order that his innocence or guilt might be established by an appeal to the laws of the country. The world must be at a loss to trace any connection between my conduct on this occasion and my having acted as commercial agent for the republic of France upwards of six years since. Hence, it follows that Mr. Moodie can have no other object in view than a desire to establish a prejudice against me in the eyes of my fellow-citizens. Mr. Moodie states that he expressed his surprise to Mr. Ker, that at so late a day he meant to oppose Robbins being delivered up. The fact is I had spoken to the counsel the very day I saw the prisoner in jail, but his avocations. I presume, did not permit him to attend to the case. The consequence was. that rather than the cause shoilld be wholly neglected, I applied to other counsel, with whose exertions I have no reason to be dissatisfied. But I presume this is the first instance where a prosecutor has assumed to himself the right of dictating to the accused party, when, and how he shall seek redress. I am, gentlemen, your most obedient servant, Abraham Sasportas.

“N. B. No one knows better than Judge Bee that I was agent to the French republic, and no one knows better than myself that Mr. Moodie was agent for the British government; by the repeated vexatious impediments which were raised up by him in every case, without the colour of a legal defence. The numerous decrees of the supreme court of the United States, in favour of the captors, prove the fact.”

Immediately upon the meeting of congress a call was made upon the president for papers, &c., connected with Robbins’ surrender, to which the following answer was given:

“Message from the president of the United States, transmitting a report of the secretary of state, and sundry documents relative to the requisition for and delivery of Jonathan Robbins, in pursuance of a resolution of the house of representatives of the 4th instant.

“Gentlemen of the House of Representatives: In consequence of your request, to me conveyed in your resolution of the fourth of this month, I directed the secretary of state to lay before me copies of the papers intended. These copies, together with his report, I now transmit to the house of representatives for the consideration of the members. John Adams.

“United States, February 7, 1800.”

“Report.

“Department of State, February 6, 1800.

“The secretary of state has prepared, as directed. and now respectfully submits to the president of the United States, copies of the papers which probably were contemplated by the house of representatives in their resolve of the 4th instant, although no requisition, as the resolve supposes, has ever been received, nor any communication made to the judge of the district court of South Carolina, concerning any man by name of Jonathan Robbins. But by the proceedings before that judge, as they have been published, it appears that a seaman named Thomas Nash, the subject of the British minister’s requisition, did assume the name of Jonathan Robbins and make oath ‘that he was a native of the state of Connecticut, and born in Danbury in that state.’ The secretary, therefore, besides the copy of the requisition, and the copies of his letter to the judge of the district court of South Carolina, and of the judge’s answer, has prepared, and herewith encloses, copies of the certificates of the select men of Dan-bury, and extracts of letters from Admiral Sir Hyde Parker, satisfactorily proving that the Thomas Nash calling himself Jonathan Robbins, who, on the requisition of the British minister, was delivered by the judge aforesaid, with the assent of the president of the United States, was not an American citizen, but a native Irishman, who, to his other crimes, added perjury, in the hope thereby to escape the punishment due to piracy and murder. The original certificates of the select men and town clerk of Danbury are in the secretary’s possession, and he has compared the extract of Admiral Parker’s letter to Mr. Liston with the original, and the extract of the admiral’s letter to the British consul at Charleston with the passage as recited in the consul’s original letter to Mr. Liston. All which is respectfully submitted. Timothy Pickering.”

(No.l.)

Copy of a note from Robert Liston, Esq., envoy extraordinary and minister plenipotentiary of his Britannic majesty, to Timothy Pickering, secretary of state of the United States:

“R. Liston presents his respects to Col. Pickering, secretary of state. A seaman of the name of Thomas Nash having beeen committed to jail in Charleston. South Carolina, at the instance of his majesty’s consul there, on suspicion of his having been an accomplice in the piracy and murder committed on board his majesty’s ship Hermione, and information of the circumstance having been transmitted to Admiral Sir Hyde Parker, a cutter was dispatched to Charleston with an officer on board, to whom the man was well known, in order that his person might be identified, and that he should be carried to the West Indies for trial. But, on the application of the consul for the restoration of Nash, in conformity to the treaty of 1794, Judge Bee and the federal attorney were of opinion that he could not with propriety be delivered up without a previous requisition on my part made to the executive government of the United States. May I therefore request, sir. that you will be pleased to lay this matter before the president, and procure his orders that the said Thomas Nash be delivered up to justice.

“Philadelphia, May 23, 1799.”

(No. 2.)

Letter from the secretary of state to Judge Bee:

“Department of State, Philadelphia,

June 3, 1799.

“Sir—Mr. Liston, the minister of his Britannic majesty, has requested that Thomas Nash, who was a seaman on board the British frigate Hermione, and who, he is informed, is now a prisoner in the jail of Charleston, should be delivered up. I have stated the matter to the president of the United States. He considers an offence committed on board a public ship of war on the high seas to have been committed within the jurisdiction of the nation to whom the ship belongs. Nash is charged, it is understood, with piracy and murder, committed by him on board the above mentioned British frigate, on the high seas, and consequently ‘within the jurisdiction of his Britannic majesty,’ and therefore, by the 27th article of the treaty of amity with Great Britain, Nash ought to be delivered up, as requested by the British minister, provid *842 ed such evidence of his criminalty be produced as. by the laws of the United States or of South Carolina, would justify his apprehension and commitment for trial, if the offence had been committed within the jurisdiction of the United States. The president has, in consequence thereof, authorized me to communicate to you ‘his advice and request,’ that Thomas Nash may be delivered up to the consul or other agent of Great Britain who shall appear to receive him. I have the honour to be. &c., &c.

“(Signed) Timothy Pickering.

“The Honourable Thomas Bee. Esq., Judge of the District Court of South Carolina.”

(No. 3.)

Letter from Thomas Bee, Esq., to the secretary of state, dated:

“Charleston, South Carolina, 1st July. 1799.

“In compliance with the request of the president of the United States, as stated in your-favour of the 3d ult., I gave notice to the British consul, that at the sitting of the district court on this day, I should order Thomas Nash, the prisoner charged with having committed murder and piracy on board the British frigate Hermione, on such strong evidence of his criminality as justified his apprehension and commitment for trial, to be brought before me on habeas corpus, in order to his being delivered over, agreeably to.the 27th article of the treaty of amity with Great Britain. ■ The consul attended in court, and requested that the prisoner should remain in jail until he had a convenient opportunity of sending him away. I have therefore directed that he remain in prison until the consul shall find it convenient to remove him. I have the honour to be. with great respect, your most obedient servant, “Thomas Bee,

“District Judge of South Carolina.

“Honourable Timothy Pickering, Secretary of State.”

(No. 4.)

“Danbury, Sept. 16th, 1799.

“We, the subscribers, select men of the town of Danbury in the state of Connecticut, certify that we have always been inhabitants of said town, and are from forty-five to fifty-seven years of age, and have never known an inhabitant of this town by the name of Jonathan or Nathan Bobbins, and that there has not been, nor now is, any family known by the name of Bobbins within any limits of said town.

“Certified per: Eli Mygot.

“Eben Benedict.

“Justus Barnum.

“Ben. Hichcop.”

“Danbury, September 16th, 1799.

“The subscriber, late town-clerk for the town of Danbury, in the state of Connecticut, certifies that he kept the town records twenty-five years, viz.—from the year 1771 until the year 1796; that he is now 56 years of age, and that he never knew any person by the name of Bobbins born or residing in the said town of Dan-bury, during that term of twenty-five years, before or since. Major Taylor.”

(No. 5.)

Extract of a letter from Admiral Sir Hyde Parker to Bobert Liston, Esq., envoy extraordinary and minister plenipotentiary of his Britannic majesty to the United States, dated:

“Port Royal Harbour (Jamaica), September 9th. 1799.

-I have had the honour of receiving duplicates of your excellency’s letters numbered 10, 11 and 12, and in answer thereto, acquaint you that in consequence of Nash, one of the ringleaders in the mutiny, murders, &c„ on board the Hermione. being delivered up by the United States to me, he has been tried at a court-martial, and sentenced to suffer death, and after-wards hung in chains, which sentence has been put in execution. He acknowledged himself to be an Irishman.”

(No. 6.)

Extract of a letter from Benjamin Hoodie, Esq., consul of his Britannic majesty at Charleston, (South Carolina,) to Bobert Liston, Esq., envoy of his said majesty to the United States, dated:

“November 19th, 1797.

“In consequence of many obstacles I had to encounter in obtaining the delivery of Thomas Nash, late of his majesty’s ship Hermione, and of the numerous publications to the northward, and in this place, I wrote to Admiral Sir Hyde Parker, requesting he would be good enough to send me minutes of the court-martial; to which he answered under date 13th September— I am to acquaint, you that Nash has been executed agreeably to a court-martial, and that he confessed himself to be an Irishman: and it farther appears by the Hermione’s books that he was born at Waterford; on the 21st December, 1792, entered a volunteer on board the Dover, received £3 bounty-money, and was removed to the Hermione, 28th of January, 1793. And with respect to transmitting the minutes of his trial, that is not in my power, but rests with the lords of the admiralty only.”

The following letter's subsequently were produced to the house:

Extract of a letter from the secretdry of state of the United States, to the president of the United States, dated:

“May 15th, 1792.

“Mr. Liston informs me. that an information received by Admiral Sir Hyde Parker, of one of the mutineeers and murderers of the officers of the British frigate Hermione, being at Charleston, South Carolina, the admiral sent thither a vessel on purpose to receive and carry the culprit to the fleet to be tried; but that the district judge had not deemed it proper to deliver him up. This question has occurred before, respecting the crew of the Hermione, in consequence of some of them being apprehended in New Jersey, where they were tried and acquitted. One only was detained some time longer, on a suggestion or expectation of decisive evidence against him: but it appeared afterwards that this man was not involved in the offence, and at Mr. Liston’s request he was discharged. The only and legal question was, whether an offence committed on board a public ship of war, on the high seas, was committed within the jurisdiction of the party demanding the offender, on a just construction of the 27th article of the treaty. Upon a further consideration of the subject. I am inclined to answer in the affirmative; I supppose the offence committed on board the Hermione to have been a most atrocious act of piracy accompanied with murder: that all nations having jurisdiction in this case, if the pirates be found within their dominions, any of them may try and punish them; but wanting the full evidence for that purpose, it would seem reasonable, and essential to the due administration of justice, that the culprits be delivered up to the government of the country to which they belong; all nations being interested in the punishment of such pests to society. On the point above-mentioned about the jurisdiction, it may be observed, that besides the general concurrent jurisdiction held by Great Britain on the high seas, her officers have, and exercise, a particular jurisdiction on board of their own ships. Por these reasons, and as the 27th article of the treaty especially requires the delivering up of murderers. 1 respectfully submit my opinion, that the judge of the district of South Carolina should be directed to deliver up the offender in question, on the demand of the British government by its minister.”

*843 Extract of a letter from the president of the United States to the secretary of state, dated:

“Quincy, May 21st, 1799.

“Your favour of the 15th is received. I have no doubt that an offence committed on board a public ship of war, on the high seas, is committed within the jurisdiction of the nation to which the ship belongs. How far the president of the United States would be justifiable in directing the judge to deliver up the offender, is not clear. I have no objection to advise and request him to do it.”

House of Representatives, Feb. 21, 1800.

Mr. Livingston, in consequence of a reference of the message of the president on the. case of Jonathan Robbins to a committee of the whole house, and of another resolution proposed by Mr. Bayard thereupon which had also been so disposed of, the amount of which resolution was an approbation of the conduct of the executive in his proceeding on that subject, proposed the following resolutions: “Resolved, that it appears to the house that a person calling himself Jonathan Robbins, and claiming to be a citizen of the United States, impressed on board a British ship of war, was committed for trial in one of the courts of the United States for the alleged crime of piracy and murder, committed on the high seas, on board the British frigate Hermione. That a requisition being subsequent to such commitment, made by the British minister to the executive of the United States for the delivery of the said person (under the name of Thomas Nash) as a fugitive, under the 27th article of the treaty with Great Britain, the president of the United States did, by a letter written from the department of state to the judge who committed the said person for trial, officially declare his opinion to the said judge that he ‘considered an offence committed on board a public ship of war to have been committed within the jurisdiction of the nation to whom the ship belongs,’ and in consequence of such opinion and instruction, did advise and request the said judge to deliver up the person so claimed to the agent of Great Britain, who should appear to receive him, provided only, that the stipulated evidence of his criminality should be produced. That in compliance with such advice and request of the president of the United States, the said person so committed for trial, was, by the judge of the district of South Carolina, without any presentment or trial by jury, or any investigation of his claim to be a citizen of the United States, delivered up to an officer of his Britannic majesty, and afterwards tried and executed on a charge of mutiny and murder. Resolved, that inasmuch as the constitution of the United.States declares that the judiciary power shall extend to all questions arising under the constitution, laws and treaties of the United' States, and to all cases of admiralty and maritime jurisdiction, and also that the trial of all crimes (except in cases of impeachment) shall be by jury; and such trial shall be held in the state where such crimes shall have been committed, but when not- committed within any state, then, at sucn place or places as congress may by law have directed; and inasmuch as it is directed by law, that the offence of murder committed on the high seas shall be deemed to be piracy and murder, and tha’ ‘all crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be first brought.’ Therefore, the several questions, whether the aforesaid crime of piracy or murder was committed within the exclusive jurisdiction of Great Britain; whether it comes within the purview of the said 27th article: and. whether a person stating that he was an American citizen, and had committed the act of which he was accused in attempting to regain his liberty from illegal imprisonment, ought to be delivered up without investigation as to his citizenship, or inquiry into the facts alleged in his defence, are all matters exclusively of judicial inquiry, as arising from treaties, laws, constitutional provisions, and cases of admiralty and maritime jurisdiction. That the decision of those questions by the president of the United States, against the jurisdiction of the courts of the United States, in a case where those courts have already assumed and exercised jurisdiction; and his advice and request to the judge of the district court, that the said person thus charged should be delivered up, provided only, such evidence of his criminality should be produced as would justify his apprehension and commitment for trial, are a dangerous interference of the executive with judicial decisions; and that the compliance with such advice and request on the' part of the judge of the district court of South Carolina, is a sacrifice of the constitutional independence of the judicial power, and exposes the administration thereof to suspicion and reproach.”

The question of a reference to a committee of the whole was taken and carried: ayes, 55.

Tuesday, February 25th.

The house having resolved itself into a committee of the whole, on the message of the president respecting Jonathan Robbins, Mr. Edmond was called to the chair. A short debate took place, whether the committee should take up the business of the resolution first proposed by Mr. Bayard, or on those subsequently offered by Mr. Livingston. Mr. Bayard seemed inclined to withdraw his motion, but the committee seeming of opinion that both resolutions were within their jurisdiction, and that they might proceed on either, the question was taken whether the committee should proceed on the resolution of Mr. Livingston, and carried in the affirmative. Messrs. Bayard, Rutledge, Otis, &c., voting in favour of the question; and, Messrs. Livingston, Nicholas, &c., voting against it. Mr. Livingston entered upon an argument in support of the resolutions which he had some days before submitted to the house, and which now were taken up. Soon after he began the discussion he was proceeding to read a deposition of Jonathan Robbins, and certificates accompanying the same, to prove himself a citizen of the United States, in which the deponent swore, before the court of South Carolina. that he was born at Danbury, in the state of Connecticut, and that he was impressed from on board the American brig Betsey, by the crew of the British frigate about two years before, where he was detained, contrary to his will, until the mutiny occurred: when Mr. Bay-ard opposed the reference to a fact so incompetently authenticated as the report of a case upon newspaper testimony, especially when, if it had been the desire of the gentlemen to have introduced it as evidence, it was extremely easy to have procured the record of the court before he proceeded on his allegations. If such evidence as tbis was to be admitted, other, and perhaps more important, might next be introduced to oppose upon the committee. Besides, it certainly must be looked upon as ex parte evidence, which it was impossible to repel. Mr. B. submitted to the house, whether it could be in order to admit any such evidence to support the resolutions when all the documents which had been asked for, and which had come to the knowledge of the executive, had been admitted to the bouse. Mr. Gallatin, on the question of order, contended for the admission. This document, be said, was referred to as authentic, in his letter. That, by the proceedings before the judge (Bee), as they have been published, it appears that a seaman named Thomas Nash, did assume the name of Jonathan Robbins and make oath that he was a native of the state of Connecticut, &e. Certainly it cannot be improper to refer to the identical document there mentioned. If it was proper for the secretary of state to make the allusion, the house could *844 take it up under the same idea. He did not think it was introduced as evidence before the committee. Mr. Dana said he was very sorry the gentleman had been interrupted; he could not think of admitting it as evidence, but the gentleman might read it as part of his speech, which perhaps might otherwise have a chasm in it. Mr. Bayard was fully of opinion with the mover of these resolutions, that it was a very serious business; he believed that there was a very serious object in view. He believed the affidavit was introduced as evidence, also why should the gentleman have taken this in the rotation, after he had been stating the facts contained in the message.

It was further said that this deposition was referred to by the secretary. Surely then it was introduced as evidence upon that authority, but how had the gentleman been assured that this was the same deposition, an extract of which was taken by the secretary? Did it follow that because the secretary referred to a printed paper, that this was the authentic one? He presumed no gentleman would vouch for the veracity of this paper. The secretary had only extracts from the document of such parts as he deemed necessary for the information of the house, supposing this was the case meant. Mr. Nicholas was surprised that the gentleman should oppose the reading of what he supposed the secretary had authenticated copies of in his office; the secretary had certainly referred to an authenticated affidavit which was published, and it was presumable this was the one. The result of this declaration must be, if the gentleman thinks the house is imposed upon by a reference to a false paper, that the committee must rise, and the house ask for the authentic copies, which may aid their decision. But, Mr, Nicholas thought the information was sufficiently authentic; the house had asked the papers of the president, some papers were sent, and instead of sending this original paper, he had referred to the printed report. This had never been contradicted, and had every appearance of authenticity. He really hoped that the objection would not be insisted on, and the discussion arrested in this stage. Mr. Rutledge hoped the paper might be read, but not for the purpose for whieh it was introduced; he wished it as part of the gentleman’s speech, but he did not think this was the proper tipie; he did not think the gentleman was come to that chasm in his speech which was supposed by the gentleman from Connecticut. The gentleman had produced facts and stated evidence, among which he was proceeding to introduce this paper. Mr. Rutledge said he was willing to procure all the information, and that other gentlemen should also be possessed of it. on which account, when the subject was first mentioned, he moved its reference to a select committee; in that case, all the facts and every necessary light would have been procured, but it was referred to a committee of the whole. Mr. Sedg-wick (as speaker), thought as this was merely a question of order, and as the acts and deliberations of the committee of the whole were prescribed, it could only have been proper to have made it an act of the house. The committee of the whole, he said, were limited to the documents referred to it by the house, and if they found them insufficient, it was their duty to rise and go to the house for more. If it was the intention of the gentleman to read this as evidence, (which we must suppose was intended,) and it was not evidence, it might shed darkness, but it could not illuminate. He-was surprised, that gentlemen, who were sitting there in their inquisitorial capacity, should bring forth charges of a serious nature against two officers, of high confidence, and, deservedly so in the public opinion, upon evidence which cannot be deemed authority, when, for-merely asking, they could receive that which was authentic. Mr. S. said, he was not afraid of the reading of any papers whatever, on any subject, because he must possess a desire to come at the whole truth. “If there be a man,” said he, “who possesses the public confidence unworthily, strip him of that confidence and his power too, but do it not, sir, on bare newspaper publication.” Mr. S. said, that his reasons for opposing the reading were, not because that paper was deficient o. that formality which courts of justice require; he should, therefore, waive formalities, except the evidence should appear evidently false. But the deposition itself he believed to be perfectly irrelevant to the object of inquiry. It was not, in his opinion, material whether this man claimed to be an American citizen or not, nor was it material whether the paper under question was in the office or not; he thought the only inquiry ro be, whether the president had interfered with the judicial authority or not; and, whether the judge had been guilty of a breach of his duty, in obeying the orders given him by the executive of the United States. There were, to be sure, allusions made to a printed trial, but it was by the secretary of state, and not by the president; he had said no such thing, and therefore he was not culpable. The only thing which he believed the president considered was, what must appear a very clear and well «ascertained fact, to wit: that a ship or vessel, of any power, was to be considered as the jurisdiction of that power to whom it belongs, and not whether the man was an American citizen or not. Mr. Livingston said, he did wish to read this paper as part of his speech, and he believed it a very material part, because it was a justification of a point which he wished to establish. He wished to show the committee, that Jonathan Robbins claimed to be an American citizen, and that he said he was impressed; this he swore in court, and that he did so he hoped would be admitted. He said he only introduced it with this view. Surely he could not be so far mistaken in his law knowledge as to be thought to have said, that the culprit could be evidence in his own behalf. If he did say he was a citizen, then the matter, upon examination, must appear more serious than gentlemen would be willing to think. “Did the speaker think it was his desire,” Mr. Livingston asked, “to criminate the man who stood so deservedly high in the public estimation?” Surely the mere reading of this paper could not contribute to that crimination, since it was with the other papers, furnished to the house, as documents which were asked for by the house. The house received their papers (this among others, for to this the secretary referred the house) to assist them in forming their judgment. If “newspaper evidence” was given to the house, if unauthenticated affidavits, who then was to blame? The house asked for all papers relative to the subject, the president furnished this, and therefore, if any blame attached, it must be to him.

It was said, that this paper was in the office of the secretary of -rate; that this was not an act of the president, that this was a report of the secretary of state, and that he only was answerable for it. “Sir,” said Mr. L., “when the president says, that he, in conformity ' to the request of the house, had ordered the secretary to bring him the papers, and that he submits them to the house for their consideration, does he not take the act off the secretary and appropriate it to himself? Certainly he does. The conduct of the gentlemen must appear a little strange when it is considered that a part of these papers, such as certain affidavits from Connecticut, that Robbins was not born there, and a letter from the British admiral in the West Indies, stating that he was an Irishman, and entered into the service,—I say it is unaccountable that gentleman are willing to admit this part of the report, which was never required by the house, and refuse another part which was. and of which it was the duty of the house to be informed, if information could *845 be had. Information is had. but it must not be admitted! Sir. this is to be considered as an act of the president. It is to be considered that this affidavit is quoted and ought to be wholly read, since it is the part upon which we are to proceed to the investigation.”

Hr. Bayard had no doubt but it was the gentleman’s intention to impress the force of the facts contained in that paper, upon the minds of that committee; and. to suppose it would have no impression, would be absurd. It would afterwards be said that this man was admitted to be an impressed American citizen, and that he was praisewori ,.v in committing what would then be called the homicide. The decision of the committee would be much affected, he said, by the kind of evidence which was alleged. If this was admitted, it would be impossible to ascertain the extent of the principle. Other depositions may be produced; indeed. he had no doubt but the gentleman could get proof to any point which he might think it material to ascertain. In saying this, he did not mean to insinuate that any improper steps would be taken by that gentleman, but there were volunteers enough to be found who would step forward, in order to answer party purpose, and make oath of anything. But what the gentleman had now acknowledged, his reference to that paper was a work of supererogation; he now said, that he only wanted to prove that the man claimed to be an impressed American citizen. This is admitted in the letter of the secretary of state—“Sir.” said Mr. B., “you are about to inculpate the conduct of the president, and of the district judge of South Carolina; and to do this, shall you do it on the affidavit of a man at the hazard of his life; and a man who could commit murder and piracy, for which he was then going to be executed? It was the last resource of the wretch himself.” Mr. B. had no doubt, but the gentleman would have brought that paper as evidence, and though derived from the vilest possible source, he would certainly have turned it to serve his point. With this idea, and for the sake of consistency, (for the rules of the house would admit, in any other part of the examination, what was now admitted,) and viewing the principle injurious, he had thought it his duty to put a stop to it in time. Mr. Livingston supposed he should increase the astonishment of gentlemen still more, when he declared, that he did not believe a word of the affidavit, but he believed Nash was an Irishman, and that he entered on board and committed all the crimes charged to him. It was clear that the affidavit could not be evidence. In admitting this, he believed he did not surrender one point of the resolutions; he should prove that all he wished to ascertain was that such a claim was made to the court. Mr. Gallatin did not consider the question to be. whether this should be considered as evidence, but whether the gentleman might be permitted to read the paper—whether as part of his speech or whatsoever. It was certainly no legal evidence, and therefore if a trial was holding, or if the ground was an impeachment, refusal would be proper; but upon what ground the gentleman was interrupted at this time was inconceivable, except it was to throw all possible impediments in the way of the investigation. The letter from the British admiral to the British consul was not legal evidence, but yet that was inserted in the report of the executive, that was sent no doubt to disprove some fact which was related. What was that fact? Why, that this man had laid claim to citizenship; and surely, while the gentleman "was stating the facts contained in his resolutions, he had a right to elucidate that fact by reading a paper so intimately acquainted therewith. Mr. G. said, he did not know what use the gentleman made of this paper, but it is certainly proper to hear what he intended by the reference, before he ought to have been stopped. There certainly could be no doubt, Mr G. thought, that the secretary of state knew this affidavit to be authoritative, by the reference he made to it. If this paper could not be read for himself, he should wish to procure further information, before he should think it proper to proceed. Mr. Bayard asked, where could be the necessity of proving a fact which every member of the house was willing to admit? No man but would acknowledge that Nash claimed to be an American citizen; but perhaps the will of the gentleman was to have additional light on this subject, on which account he introduced the deposition. Mr. B. said, he was willing only to proceed upon what the house knew from the documents before them, and not take a step on precarious ground. It must be well known what the gentleman wanted to get this admission for: he no doubt wished to prove that .upon his own mere suggestion, that he was an American citizen, and that he was impressed, he was entitled to a trial by jury in this country, and on that account, that the act of sending him away was unconstitutional. This would lead to an extensive field of argument. If there was any necessity for more evidence, or to call witnesses to the bar of the house, let proper measures be taken to procure it, but let it not come forward in any other way. Mr. Dana read the resolution first offered to the house for a call of papers relative to Jonathan Robbins.—This was answered, he said, by the secretary of state, that no requisition or proceedings had been had in that name, but he presumed allusion was made to the case of Thomas Nash, concerning whom proceedings were had in.the district court of South Carolina in that way, and that only the secretary made reference to the printed report In this blundering way, Mr. Dana said, the business was begun. (He was called to order.)—In addition to this, he said the proceedings of gentlemen were erroneous, but,notwithstanding that, Mr. D. said he would gratify the wish of the gentleman as far as his vote would go, to read it, but only as part of his speech; no doubt he wished to support some point of his argument by it, and in that view he had a right to read it; but that it was evidence, he denied. General Lee said, he did not profess to understand the rules of the house perfectly, but he must indulge a presumption, that they could have but one grand object in view, to encourage and maintain full and fair discussion, on every subject, whatever it might be, that could come before the house. That being necessary, surely a rule must be bad, indeed, that would bar a gentleman from reading anything that might tend to elucidate the subject. He therefore, thought it the duty of the committee to allow the gentleman from New York to read this, and every other paper which might enable him to proceed on so serious a charge as the one exhibited in the resolutions. Were not gentlemen fully adequate to judge what may be wrong, when he should come to the application? If he asked the papers of the president of the United States, was he to be content with those only which should come through his ministers? That could not be the true ground of ■ proceeding. Suppose the gentleman be stopped from reading what he thinks material, and the resolutions which he has introduced should afterwards be negatived; “I pray you t.o say, sir,” said Mr. Lee, “what would be the consequence? Would not the people say that no other possible decision could be had by the house, because the committee of the whole laid their hand upon every effort the gentleman used to substantiate his charges? They certainly will, and no act can more increase the means of the opposition to the measures of the government.” Upon this ground he hoped the gentleman would be permitted to proceed, and the whole truth be made to appear. If gentlemen should determine it out of order, he would move that the committee rise in order to get hold of all the authentic papers.

The chairman having stated his reasons, con- *846 eluded with an opinion that the member could not proceed to read the affidavit.

Mr. Gallatin appealed to the committee from the decision of the chair, when there appeared 39 in favour of the decision, and 48 against it.

Wednesday, Feb. 26th.

Mr. Davis moved, that the committee of the whole house be discharged from the further consideration of the resolutions proposed by Mr. Livingston and Mr. Bayard on the subject of Jonathan Robbins. The small progress, Mr. G. said, which was made yesterday in the discussion, fully convinced his mind that nothing at all would be done in it; besides, were he convinced that the discussion would be impartially conducted, he did not know of any possible good that could arise from the adoption of the resolutions. If there had been any error in the proceedings of the executive, he conceived that error would correct itself. If there was an improper interference, he was certain it could not have arisen from improper motives, and therefore he sincerely hoped he should not be called upon to give an opinion on the subject. Nor, on the other hand, was he at all prepared to compliment the executive, or any officer of the government, for having done what he thought to be right. If he had done right, it was his duty. He did not think it of any great importance, but most assuredly, if the argument was extended, it would be made a case of great importance. It was better, however, to let the case of Jonathan Robbins sleep in the committee of the whole, where it was. He was not prepared to criminate, nor was .he prepared to applaud. Mr. D. did not think the evidence before the house was sufficient to form a decision upon, and he professed himself unable to make up a determinate opinion; but if he could form any, the deficiency of evidence furnished must.raise his suspicion. Reference was yesterday made to a paper; it might be authentic or it might not: it was impossible to say to what papers gentlemen might be disposed to refer, and for gentlemen to sit there as judges having papers read the authenticity of which it was impossible to know, was to judge in the dark. He hoped that if the house were not prepared to discharge the committee of the whole, they at least were for a call for such authentic papers as could be procured, for from the present documents it was impossible to form a correct judgment upon this very disagreeable and irksome business. He had no doubt but many gentlemen had formed their judgments one way or the other, but he had not. Mr. Randolph said that no gentleman had a higher respect for the motives of the gentleman from Kentucky than himself; but however. disagreeable it might be, he must differ from him in his present opinion. He really hoped the gentleman would reconsider the motion he had made, and not stop the gentleman from New York in this early stage of the business. If there were any defects in the papers, and their authenticity was questionable, it must not arise from the gentleman from New York, .but from those whose duty it was to furnish all the facts relative to the business. He was obliged to read a printed paper, because those with whom the authoritative copies are, have •not thought proper to furnish the house with them. He hoped, if a stop was put to the proceedings. it would not be to discharge the committee, but to call for authentic copies of all the papers within reach of the government. It must be acknowledged that the man .whose case the house are considering, did put in his claims to citizenship, and the protection of his country on that account. If that acknowledgment is refused on account of the paper which has been produced being a newspaper, reference must be made to what is within reach of the house—more authentic papers. The gentleman had supposed that most of the members had .made up their minds on the business without other papers; • where he procured that information, Mr. R. could not tell; but certain it was that his mind was not made up; he professed to be still in a state of incertitude; he therefore was sorry the gentleman had not made his motion until it would be known by the house whether the gentleman from New York had any further evidence to adduce. Could he undertake to say that his mind would not be made up, and the subject appear to him in a very different point of view after a full and fair discussion? Mr. R. thought the very reason which the gentleman had given for his motion would operate as a strong argument • against it; with him it certainly had that impression; be thought a discussion was more proper to remove incertitude from the mind, than that, because such a state existed, the committee should be discharged. The public mind, he believed, was very uneasy on the subject, and this inquiry should not be eluded; he therefore ought to have withheld his motion, that a discussion might be had from which the people could draw their deductions. If, after all the evidence that was to be produced, he could draw a conclusion similar to that expressed by the gentleman, Mr. R. said he would cordially join with him, that no expression ought to be made by the house without being well supported by facts. General Lee considered the motion would have the complete effect any gentleman could wish whose desire it was to reprobate the conduct of the administration of our government. How could the motion be necessary —how useful? “If they were to ask more evidence,” said Mr. Lee. “I would vote for it to be produced; they have brought the subject before the house; let us see it in the purest col-ours which it can be placed in. We are ready to meet them hare; we are willing that they have every evidence that can be obtained to elucidate their charge, but let not the executive be hung up to reproach without a trial; let not suspicion be encouraged, which must have all the effects of a substantial charge. I wish them to go on with the discussion, that all truth may be disclosed, and every fair light be given which the case will bear, for now the people of the United States have their eyes fixed upon our proceedings on this important question.” Mr. Macon was in favour of the motion; if the committee of the whole was not to be discharged, he hoped at least the business would be postponed till the public business of the session was over; there were many public bills, he said, that must be passed. The house was called upon to judge with almost no testimony, and yet upon this uncertain ground, perhaps a whole week might be spent of the most precious time of the house, for if the house was to rise at the time proposed, the loss of this time would certainly be felt. As to the impression it would leave on the minds of the people, they had as many facts to judge from as the house, and they certainly would form an opinion whether the house did so or not. Gentlemen were very much mistaken, he said, if they undertook to lead the people; they would think, and they would show what their judgment was when a proper time came for that purpose. . The time the people would take to show their approbation or disapprobation of the measures of the administration, was at elections, and then they would do it. Gen. Smith said if the object of the motion was to get better testimony, he thought it a very proper one; the house certainly ought to be possessed of the documents of the district court of South Carolina, on this case, in an authentic form, and not from newspaper information. He professed himself to be in the precise situation of the mover, and if called upon to vote without more evidence, should be at a loss to know how to vote. Mr. Dana was against the postponement or the rising of the committee. It was to be recollected that the business had assumed its present shape only in consequence of the zeal of the gentle *847 man from New York and his coadjutors, to censure the executive. On the 7th of February it was committed to the whole house; contrary to the opinion of a number of gentlemen who wished the facts investigated by a select committee, thirteen days then elapsed before he had prepared his resolutions—resolutions not calculated to make an inquiry into the conduct of the executive, but expressive of the most pungent censure upon its conduct. These resolutions were produced -upon the papers which, at the desire of those gentlemen, were submitted to the house. The only question then is, do the papers upon which thoBe resolutions are based, warrant the censure contained in them, or not? It certainly would be a high reproach to the very idea of a public inquisition to ad,mit more evidence upon those grounds. Still, however, let gentlemen go on in their heterogeneous proceeding; the house would have the wisdom justly to appreciate the various attempts made to clear themselves of a predicament in which their over-arduous attempts to censure had thrown them.

Gen. Shepherd thought the best way would be to let the resolutions take their course; they .must be debated sooner or later, and the sooner it was got rid of, the better. He was sorry they had ever been introduced in the house, but as they were, he hoped no postponement would take place.

Mr. Livingston conceived it his duty to answer the observations of the gentleman from Connecticut (Mr. Dana), as to the resolutions being founded upon the facts then before the House. He did not think the facts were precisely sufficient to warrant every idea contained in the resolutions. When the original call for papers was passed by the house, he hoped that something more authentic than newspaper testimony would have been referred to by the executive. and upon that he was called to act, if at all.

“The gentleman had further said that my zeal,” said Mr. L., “and that of my coadjutors,to censure the executive, has brought us into this situation. Who. sir, I would ask the gentlemen are my coadjutors? That gentleman himself was my coadjutor, and every gentleman in ■the house, because the resolution was adopted: the house directed the inquiry and every gentleman must therefore take the burthen in part with me. It was upon the suggestion of the notoriety of the facts that the inquiry was made, and now we are about to enter into the inquiry upon the facts with whieh we are furnished. We never can act but upon the evidence we have to guide that action; if the facts contained in the resolutions cannot be substantiated, if they shall fail to justify the conclusions we mean to draw from them, we certainly cannot be worthy of blame for not possessing more.” “I consider the affidavit yesterday produced,” said Mr. L., “as only supporting one branch of the conclusion that may be drawn from the whole. Whatever gentlemen may think as to the folly or hasty zeal of the resolutions, I can assure them tnat they are the results of many days’ most serious reflection: they were not drawn in haste, and I am' not afraid to say that they can be well substantiated—every fact contained in them. I am sufficiently prepared to proceed, and therefore hope this motion may be negatived, and a calm and deliberate investigation be had. If the deductions I shall make will not be satisfactory, then let it drop: I am, however, well satisfied of their force.” Mr. Craik said that very early in this business he thought the house were entering into it very improperly, either having nothing at all to do with it, or else taking wrong measures; if they had. he thought then, and •was yet of opinion, that if the object was to impeach the president, measures ought to have been taken accordingly. He never did look upon the house of representatives as having either the power to censure or to approbate the conduct of the executive, and therefore equally' disapproved the resolutions of the gentlemen from New York and Delaware; and upon that ground he felt strongly inclined to vote with the gentleman from Kentucky for giving the whole business the go-by, and getting clear of it by any possible means.

The motion being to discharge the committee of the whole from both questions, was giving an opinion upon neither one nor the other, and therefore it could not be received as a censure agreeably to the apprehensions of the gentleman from Virginia, (Mr. Lee.) Mr. C. believed the people of the United States were too wise and too intelligent to form unjust conclusions upon the conduct of the house on this subject. They had the whole subject before them, they could judge, and they had a right to do it, but the house had not, except the avowed object of impeachment, which was not the case; the house had nothing to do with it, and therefore they ought not, in this unnecessary way, spend time upon it. Mr. Harper agreed with gentlemen that it would be folly for the house to spend time in useless discussion, which could lead to no decision, but viewing this resolution as he did, he must conclude it of more importance; he thought it the direct road to an impeachment of the president of the United States, and if so, surely it must be important. The resolution declared in express terms, that the executive had exercised unconstitutional powers, one of the most dangerous crimes he could commit; if he had so exercised his power, the inevitable consequence must be that the president of the United States must be impeached by this house. Then how could any gentleman say this was a trifling question, and one with which the house had nothing to do? Certainly no question can be more important. If, as it respected the motion of the gentleman from Delaware, no motion had been made to criminate the executive, he should not think it right to approbate his conduct; he should, in short, have been of an opinion that the house had nothing to do with it, but it having been, he should consider it very disrespectful not to express a sense of the propriety of the executive conduct. He was willing, nay desirous of meeting the charge with all its terrors, and never should shrink from a decision on it. He presumed gentlemen had a meaning in what they did; and if they had any meaning, it must be that the house ought to proceed against the executive. He did not think, however, from the total evidence which appeared, that there was one idea in the resolution but ought to be scouted with disdain from the house. He wished to have an opportunity of showing to the world that the house disdained to look with unconcern at a serious and unfounded charge upon the executive of the United States. He wished to give an opinion upon these charges, and treat them as they merited. Mr. Rutledge regretted that he could not join with his friend from Maryland (Mr. Craik) in thinking this consideration useless; he believed the attention of the people had been called to view this subject, and they were anxiously looking for a decision in some way. Neither did he think with his honourable friend that the house had nothing to do with it because no impeachment could grow out of it. It was impossible to say what the gentleman meditated in his motions, but one thing was certain: if the gentleman had wished to promote an impeachment, he could not have taken a more direct means for it, if the resolutions could be carried. He thought the friends of the administration would act a very unfriendly part towards the administration if .they should agree to smother the business at this stage. The minds of the people had been raised to the highest pitch of expectation. They had been told, in certain public prints, that it loudly called for the interference of congress; they had also been told so by an hon-ourable member of the other house that congress *848 must interfere. Attempts having been made to lead the public mind astray, and the house having proceeded so far on resolutions calculated to procure the object it would be extremely wrong not to remove that disquiet by a suitable proceeding. It would not be useless to rescue the executive from the very- serious charges which had been thrown on him, and prove to the world that his actions had been consistent. Mr. Kitchell thought no good could arise from the investigation of this subject, because he did not know what was to be done in it, let the decision be what it might. The gentleman from South Carolina (Mr. Harper) wished to have an opportunity of showing that every part of the resolution was built on false ground; every gentleman in the house was not so fond of speaking or of hearing as was that gentleman, and he hoped merely on that account the house would not spend time on what (in his opinion) could not possibly lead to impeachment. What effect could a discussion have but to show the world that there were parties in the house, and to raise a rancorous disposition? He did not know what in the resolution could lead to an impeachment; nor did he know what the house, in their censorial capacity, had to do but to impeach—he believed it equally out of the power of the house to applaud. In short, he did not think they had anything to do with it. Mr. Nicholas hoped the discussion would proceed. Although there might not be sufficient ground on which to impeach the executive, he could not agree that, therefore, no inquiry ought to be made into his conduct; there might be an error in his conduct, and no impeachment be necessary to be raised out of it, and if so it would be extremely wrong to suffer it to go out to the world without a decision after the business had once been taken up by the house. Wrhere there might be no bad intention, or wicked design, the actions might be of a dangerous tendency and proper to be inquired into, in order to express an opinion thereon. Mr. N. said he was well pleased that his opinion, that the motion ought to be negatived, accorded with that of the gentleman of South Carolina, because it would afford him an opportunity of showing what he said he could show. Mr. Bayard had no doubt of the competency of the house either to impeach, to censure, or to approbate the conduct of the executive, and of course both resolutions were within their power.

Several gentlemen had int>*uated that the authentic evidence, and the whole of the documents were not before the house, and that the executive department was to blame for the deficiency. It appeared that the gentleman himself had forgotten the import of his resolution; it called for such documents as might be in possession of the department of state. Now what could possibly be in possession of that department? The president of the United States had his duties' to perform, and the judge of the district his duties; each had their separate documents, and as neither interfered with the other, therefore it could not be expected to be in the power of the president to furnish the papers belonging to the court of South Carolina, any farther than they came within the joint duties of both. Agreeably to treaty the British consul made a requisition for the person; a copy of this and the several letters and instructions were sent to the house, but it was not in the power of the executive to order the judge to furnish him with a record of the proceedings; he was not bound to furnish it if the president had called for it; but the president had not required it, and no doubt had furnished the house with every paper in his possession. The idea in the resolutions being to criminate the judge as well as the executive, Mr. B. thought he ought to have had an opportunity to furnish the papers of his department, and those could and ought to have been called for before his conduct ought to have been so deeply implicated. Mr. Otis said, when -first the motion was made by the gentleman from Kentucky, he felt for a moment inclined to lean to it; the motives of that gentleman appeared to be so candid and liberal, that, for the moment, Mr. O. confessed, his feelings got the better of his reason. But a short reflection induced him to change an opinion thus hastily formed, and he felt satisfied that to vote with him would be to display, in the conduct of gentlemen who wished to support the administration of the country,- worse than censure. He joined that gentleman in regret that it had gone so far, but certainly it was a subject of the most irritating nature possible—a charge the most serious—a breach of the law by the executive magistrate, who is bound to support it and see it carried into effect—it is certainly a charge of much importance, and however disagreeable it might feel to him, Mr. O. said, he must vote that every argument should be used that could possibly tend to substantiate the charge, that nothing of truth might be hidden.

An insinuation was' thrown out that the president had suppressed part of the information which ought to be had on the business. Lest this should take hold of the minds of gentlemen, he would observe that the president, in his-message, says: “I have directed the secretary of state to lay before me copies of the papers intended, which I now transmit to congress.” If, therefore, there is any blame, it is not attached to the president, but to the department of state; but it does not appear that the secretary of state has any more papers in his possession than those the house are furnished with. This may be inferred from the readiness with which he furnished the papers he has given; he says he has no papers respecting any person of the name of Jonathan’ Robbins; “but, by the proceedings before that judge (Bee), it appears that a seaman named Thomas Nash, the subject of the British minister’s requisition,” &c. He having been, therefore, asked for papers relative to Jonathan Robbins, expressed his willingness by furnishing what he supposed was intended. Mr. Otis said he did not know to what points the evidence required by the gentlemen from New York could apply, except it was to that of his being an American citizen, and of his being impressed. An affidavit was produced to prove these facts, but it would be found from an examination of the documents, that nothing relating to those points was in the office of the department of state, for the date of the affidavit of Robbins is the 25th of July, but the order of the secretary of state bears date the 5th of July, so that no papers as to his claim can be in the possession of that department. Mr. Otis thought that the documents before the house contained everything that was important to the point. Admitting the position gentlemen had taken to be true, which he positively denied, but admitting that the president had given an opinion upon a judicial question, it was only as respected the delivery up of the man which was, in fact, an executive duty; but if the evidence should prove insufficient to support the charge exhibited against the executive or the judge, he was certain that the gentleman from New York would rejoice as much as himself, to find the charges unfounded and the character of those gentlemen beyond blame. Mr. Craik was sorry that gentlemen who advocated this motion should be charged with an opposition to the administration of the government; he believed his conduct had heretofore evinced a different line of conduct. He still denied that the mode taken by the resolution could lead to impeachment. It certainly did contain a very great censure, and one which the house had no authority to inflict. Gentlemen had supported their resolutions upon the ground of the necessity of the various departments being kept distinct, but the very object of the resolution was dereliction of that principle, since it exemplified an interference on the part of the house with a judge of the United *849 States and with the executive of the United States. When the house undertook to decide UDon executive or judicial acts, and call their conduct into review before them not with a view to impeach but to inflict a severe censure, they certainly interfered with the separate powers of those departments, which in his opinion was setting a very dangeroug precedent. He thought it ought not to be in the power of any member to lay such a resolution upon the table, or, if it was laid there, it ought not to be discussed, unless it was found to contain principles over which the house had power; it should not be in the power of any gentleman to call the attention of the house to what could not have any good effect, but might have a very dangerous one. The power of impeachment by the constitution was not a power to inflict any punishment; it was only a power to investigate facts to be tried by another tribunal; the house were not to judge, they were only to charge; but by this proceeding they had taken upon them to consider the propriety of punishing as well as charging, for most assuredly to censure, to injure a man’s character, must operate as a punishment. Mr. Gallatin considered the motion to be grounded on two ideas, one that there was not sufficient foundation for the house to act upon, and therefore that it was necessary to discharge the committee, or postpone the subject for want of further evidence. It is clear, said Mr. G., that the evidence is not sufficient to impeach the district judge of South Carolina. If an impeachment of him was the object, it would be impossible to carry it forward without an authoritative copy of the record of the court; but if there was no intention to impeach, he did not think there' was any material evidence wanted in order to decide upon the resolution, since it only meant an implication of censure upon the executive and the district judge, and not impeachment. The only business being to consider of the propriety or impropriety of censuring or approving the conduct of the president and the judge, all the material facts were before the house. If any censure was due to the president, it was on account of the opinion and advice he expressed by his letter to Judge Bee. This letter was before the house, and nothing more could be wanted to base the resolution upon; the fact was sufficient to form a decision upon. There could be but one thing wanting, and that was the original letter of the president to the secretary of state, instructing him what to write to Judge Bee, and this could not be requisite if gentlemen would not say the letter of the secretary perhaps did not contain the precise opinion of tire president. If there should be such an objection, he should certainly wish the house to possess the document. However, he concluded that no such objection could be, since a message of the president contained a full acknowledgment of every sentiment contained in that letter. Mr. G. agreed there was at first sight some. weight in the sentiment expressed by the gentleman from Maryland (Mr. Craik), that the house had only a power to impeach, not to censure; but certainly, when it was considered that an act might be committed without any ill motive, and yet the act be injurious, it cannot be the subject of impeachment, but it might be of censure. The same act committed with a criminal motive would be impeachable. which without it would be of a nature not to admit of it. Again—Mr. G. thought that the house might have no ground whereupon to censure; but they had exercised that power; they had. in a number of cases, approved of the conduct of the president, and if the act of approbation had been done, they surely had as much power to disapprove and censure. As to the irritation that was apprehended from a continuation of the discussion, that consideration would not induce him, Mr. G. said, to vote with the gentleman from Kentucky: if there was any irritation to be apprehended, it must come from those gentlemen who denominated themselves exclusive friends of the administration: from those who presumed to arraign all the measures of their opponents, and who declared, that they were disposed to support not only that measure, but every measure of the administration. A number of very improper epithets had been thrown out as it respected the resolution, and certainly the distinction must be considered very narrow between those resolutions and the supporters of them; but it was too frequent for those great supporters of the administration to use high tones, and if they chose to do so, let them. Mr. G. said he was not afraid of any inquiry accruing from the high ground they had assumed to themselves.

The question was then taken on the motion to discharge the committee of the whole from the further consideration, and negatived: nays, 76; yeas, 14; majority against the motion, 62. Those who voted in the minority were, Messrs. Baily, Condit, Craik, Davis, Dent. Dickson, Freeman, Goode, Grove, Kitchell, Linn, Macon, Pinckney, and S. Smith.

Thursday, Feb. 27th, 1800.

Mr. Davis said, as the house had yesterday thought proper to negative a proposition to discharge the committee of the whole from the farther consideration of the business, and, as one great motive for that motion was the incompetency of evidence before the house, and as he knew it was in the power of the house to procure that evidence by a proper application, he hoped gentlemen would now indulge him in the adoption of the following, which he moved, viz.: “Resolved — that the president of the United States be requested to direct the proper officer to lay before this house a copy of the proceedings of the court held in the district of South Carolina, in the case of Thomas Nash, calling himself Jonathan Robbins.” Mr. Bay-ard said, if he was persuaded, or if the gentleman could convince him that there was any particular evidence in the hands of any officer that would tend to throw such light as to give the least explanation of the case, he certainly would be willing to accord with the resolution; but he believed every necessary fact was before the house, and this had been acknowledged by several gentlemen. If the object was to prove that Nash was an American citizen, and that he was impressed, that could not be necessary as it respected the resolutions of the gentleman from New York, for that gentleman himself had acknowledged that he believed no such thing, but that the whole claim was a falsehood. Would the gentleman then inform the house what point he wished to ascertain, or in what he expected additional proof? He wished information farther: Who was the “proper officer” to whom reference was expected to be made? There are but two officers at all in view, one is the secretary of state, the other is the district judge of South Carolina; the gentleman could not suppose that the judge would be able to transmit the records of that court previous to the adjournment of the house; and if it could be obtained, no evidence to the point could be expected from him. If on the other hand it was meant to call on the secretary of state, it was not to be expected, from the nature of the case, that any more documents were in his hands than those already furnished; he had given copies of the correspondence and requisition, which might be fairly inferred, from the nature of his office, was all of which he could be possessed. But if any gentleman doubted this fact, he could apply at the office of the secretary of state, from whom he could procure whatever was in his possession. If it was the intention of the house to close this very disagreeable business in the present session, they must negative the resolution, and let the discussion go forward. The gentleman who brought forward the resolution ought to have been provided with every document that was necessary to support *850 the charges, before he suffered them to appear. However, he did not think but the gentleman who proposed the resolutions thought his grounds were quite sufficient to support them. • General Smith was in favour of the resolution. He considered himself as filling the character of judge of the case, and as such he -was inclined to think, from the documents which were laid before the house, that there were other papers which were not yet brought forward relative to the judicial proceedings of South Carolina, that would have a considerable effect on his vote. He said there was a paper, which he had seen published, which ought, in his opinion, to be in possession of the house; he meant that wherein Bobbins swore he was an American citizen, and as a proof of it produced before the court a notarial certificate of New York, the date of which went to corroborate the fact. He also swore he was impressed. If this certificate was before' the house, gentlemen would be able to compare the date of it with the declaration made by Admiral Parker, and perhaps that comparison might produce conviction some way or other. These he thought very important, if it was desirous to prove the man an American citizen. This was certainly the duty of the judge to ascertain, but it did not appear whether he paid attention to it or not. Hr. S. declared he should be at a loss to go forward in the business without these papers, if he was to decide upon the whole truth. Mr. Nicholas said he always believed that the testimony was incomplete; but when he heard a gentleman get up and mention particular testimony which he considered so important that without it he should not know how to vote, whatever, Mr. N. said, might have been his former satisfaction as to ■the establishment of the points, he certainly must now be inclined to grant gentlemen every point of evidence that they should think necessary, if within reach of the house.

One particular piece of testimony had been mentioned, viz: that the man filed an affidavit that he was an American citizen, and he was impressed on a British man-of-war. Could any gentleman pretend to say that no inferences might be drawn from this source and the concomitant facts? The gentleman from New York, to be sure, had declared his satisfaction with the facts that had been produced to the house, but did the gentleman from Delaware know that this was the case with any other gentleman in the house? That gentleman’s conclusions and impressions were not to be taken as the opinions of others, nor were others obliged to be satisfied because he was; and, therefore, to couple others in a measure to which they were not privy, and to ascribe opinions to them which they had not expressed, was at least unfair. Some gentlemen might feel satisfied with what came out since this unfortunate man’s death, but that could be no rule for others. As to this part of the papers, Mr. Nicholas could by no means understand or conceive for what they were collected and sent to the house, except indeed it was to quiet the minds of some gentlemen who thought that the measures of the government were too precipitate, in their having judged the case without proof. That certificates should be collected respecting this man after his death, and when he could not possibly appear to contradict it, or to adduce contrary evidence, was an insult to the common understanding. Suppose this man had claimed to be an American citizen, and the government had known it, he would ask gentlemen how they would justify an act done when no such evidence was known to exist as was now presented from Connecticut. What does it amount to but that there is a chasm in this business which wants to be supplied? It might be supplied to the satisfaction of some gentlemen, Mr. Nicholas said, but it was by no means so to his. Suppose, as was observed before, the certificates had proved the man to be an American, what could gentlemen have then said? From the present state of information, every gentleman must acknowledge it a matter of doubt, and being so, it ought to have been searched into; this doubt might probably be removed by a reference; but the record of the court would prove another thing, and one which the gentleman who moved the resolutions expressed his intention to dwell much upon, that is, whether the judge had caused him to be arrested, and intended him for trial in the circuit court of the United States; and whether the judge had taken upon him to supersede, not his own jurisdiction, but that of the court over which he presided, in the delivery of this man to the British agent. For his part, Mr. Nicholas said, he had no doubt of the jurisdiction of the United States upon this man’s trial, and that it was a departure from justice to deliver him up to a foreign tribunal.

Upon a review of these reasons, he must conclude that more evidence ought to be had, if more evidence could enable the house to make a better investigation, and more was attainable; for, although the gentleman from New York thought the business ripe for discussion, he could not say £¡rwas, and therefore thought it his duty to vote for the motion. Mr. Otis said he should not. for himself have the smallest hesitation, if that resolution pointed to a particular object, or to a particular officer, ■ who might be under the direction of the president, to agree to it. If the gentleman would modify his motion, so that the president of the United States might be directed to instruct the secretary of state, to lay before the house those papers, he should not vote against it. But he thought it his duty to declare that the secretary of state had received no further authentic or other transcript than he had furnished to the house, of the judicial proceedings on this subject. Mr. • O. said he had received this information from the secretary of state in answer to an inquiry of that officer, whether he .had any such documents. But in the present form of the resolution, he could not agree to it. If the motion was adopted, the question would be who was the “proper officer?” Even if it was to be some officer under the direction of the president, the president had already furnished the house with every paper within his power. If the “proper officer” meant, was the judge of South Carolina, Mr. Otis would say that the executive could not with propriety furnish it, because it would be to all intents an interference with the judiciary department. He did not think that the president had any right to demand the documents of that court. He thought the house were fully competent to send to that district judge, ordering him to lay before them all the papers they should think necessary; but then the question should be. were the house ready to consent that the proceeding should be postponed until such an application should be made, or, in short, till the conclusion of the session? Besides, to ask for documents which would be made use of in a way injurious both to the executive and to the judge, was a measure which gentlemen who supported the resolutions of the gentleman of New York, could have no right to expect from gentlemen who could perceive nothing improper in their conduct. If then it be true, of which Mr. Otis thought there could be but little doubt, that the judicial proceedings of that court were never before the executive, whether the judge had done wrong or not, he, and he only, would have to answer, and not the president. The conduct of the president grew out of the proceedings of the court; where, then, could be the propriety or justice of having up the president in effigy, and there suspend him until the next session of congress, subject to the thousand alarms, surmises and reproaches of the people, which must carry with it the whole object of the censure! Every man might have had access to those papers; the judge never would have refused any man a copy of all the proceedings that might *851 tend to elucidate' a subject which they may' think was deficient without it. An honourable gentleman had lately written a pamphlet on the subject; he might have produced the proceedings of that court, if he had thought them of any service, and so might the gentleman from New York. Should, then, the proceedings on this business be suspended merely for the want Of evidence, which it was in the power of every gentleman to have brought forward? Gentlemen had with very great deliberation brought forward this accusation before the house—if it was in the power of every gentleman to refer to new evidence at every stage of the business, after the accusation was grounded only on the-documents before the house,' the evident effect must be to procrastinate beyond all bounds, a business, which the honour of our government requires should be immediately decided. In justice, therefore, to the president, he conceived himself bound to vote against the resolution. Mr. Dana thought this a most extraordinary resolution, indeed. Was the president of the United States the clerk of that court, to keep the records of it? What had the president of the United States to do with that court? It was certainly a total departure from all the forms of judicial proceedings to suppose a-thing of the kind. The gentlemen must certainly have mistaken the situation held by the president, or they never would have made so vast a departure from all the forms of judicial proceedings to suppose a thing of the kind. The gentlemen must certainly have mistaken the situation held by the president, or they would never have made such a vast departure from order and propriety of proceeding. The president is not the public accuser—he is not to be called upon for papers with which he has nothing to do. When he found gentlemen outraging everything that belonged to judicial propriety; when he found them stumbling into error after error, and departing totally from all jurisprudential propriety, Mr. Dana said he could not avoid rising to oppose it. So much for the form: he believed it totally wrong, and therefore could not be adopted. But in addition to this, the house would render themselves more ridiculous than they now appeared by the adoption of measures which must make a matter appear important, that in itself was unimportant. Several gentlemen proceeded with the same zeal as though an American citizen was concerned. This was not the case; it was notorious to every man that this Nash was a foreigner; of this the house were fully apprised by respectable testimony. This man contended that he was born at Danbury, but the certificates of the clerk who kept the registers for a number of years back, to whom the annual list of all the births was transmitted and by him registered; and also the certificates of a number of old residents in that town, had incontestably proved that this man was never an inhabitant of that town. He was an Irishman—let any man from Ireland, whatever, declare that he is an American of Connecticut, in vain would he be able to impose that opinion upon the mind of any man who observes his speech; it is entirely impossible to suppose that an intelligent court could be so imposed upon. The fact of country being incontestably proved, how can gentlemen be so earnest in the face of that fact, to charge the executive with any improper influence? Could the gentleman be ignorant how many men who were aliens had taken advantage of the certificates granted to Americans, and as Americans, had procured certificates from a magistrate in attestation of their false oaths? Any gentle-' man who believed that possible, might account for his having procured an American certificate. Mr. Livingston said he did hope that this motion would not have been brought forward, but as he meant to vote in favour of it, after having declared his satisfaction with the documents, as sufficient to support his resolutions, he should now give his reasons, and lest he should ■ be accused of a desire to keep • alive a calumny against the president of the United States, an effect which had been stated, he took opportunity to answer the insinuation by saying that he as much abhorred so mean a principle as any gentleman in the house. Mr. L. said he would again declare that the evidence was sufficient to satisfy his mind upon the points' he meant to establish, but that should not preclude •other gentlemen from thinking other papers necessary; papers which he must acknowledge would throw an additional light on the subject. Though he thought the message contained all the facts absolutely necessary to establish the points he proposed to dwell on, yet it certainly did not contain all that was asked for, and what they had no right to send, was given. The resolution, Mr. L. said, asked for all the papers relative to the delivery of Jonathan Bobbins. We are told that they are not in the office of the secretary of state; the president must know whether they can be procured, and he has it in his power to procure them: they may be in the hands of the district judge of South Carolina. But the house are told the president cannot procure this record, gentlemen say he has no power over that department, and yet this very president, has the power to instruct this very district judge to deliver up the person to the British government! How then can gentlemen presume to say the president has not power to call for the records of the court in a case in which himself has acted a principal part! Again. It was said that neither the president nor the judge had a right to deliver up papers that might lead to their crimination. This was the very reason why the house should require papers that would explain any doubtful parts of their conduct; for this very reason the house should demand, not only the documents, but the reasons for their conduct. The president or the judge can only be able to supply the house with those documents, and if they have been wrong, they ought to be required to furnish them. But, gentlemen, supposing the main reason for inquiring is to ascertain whether Nash was an American citizen, or not, how can it be said that the inquiry was extremely unimportant whether he was or was not? . Upon that, Mr. L. said, he did not lay so much stress as some other gentlemen; he believed that it was perfectly immaterial, because he believed that the course of proceeding would be precisely the same, whether he was or was not. and because it appeared that the conduct of the executive, and of the judge, would have been the same in either event. The same might be said as to the impressment. And, therefore, though some trouble had been taken to prove that, in addition to the murder, he had been guilty of perjury, he being proved to the satisfaction of some gentlemen, to be an Irishman, was precisely the same in the case. However it had been, he should have been delivered up. Gentlemen had farther said, that he, Mr. Livingston, ought to have known all these facts before he had formed the resolutions. Mr. L. said he did not think so; as he had before declared, he was possessed of satisfactory facts, but he could not prevent himself giving loose to the desires which other gentlemen had expressed, and therefore should now accord with them in the vote. Mr. Marshall said, it was with no inconsiderable regret that he perceived so much of the time of the house, which ought to be devoted to more beneficial purposes, employed in preliminary discussion; he thought that it was impossible the house could agree to a postponement, which the motion under consideration must cause, when it was reflected how much time must be employed in procuring those papers; it could not take less than a month; for they could only be found, be presumed to say, in the court of the district of South Carolina; it was therefore scarcely to be expected that they could be obtained until just before the rising of the house, a period, if they arrived .before the house rose,-too unfit for *852 their consideration. He, therefore, considered the question precisely the same in principle, though different in form, to that which yesterday occupied the house. The question he believed essentially to be, would the house postpone the business till the next session? In this light he should treatit; and he could notsee how gentlemen who voted against the motion yesterday, could advocate the present. Shall the house merely, because two or three members think such documents are necessary, agree to postpone the business? for if two or three members be indulged on this account, two or three may lay claim to the same right on another account, and thus day after day may be spent, and no determination ever be come to. It is a necessary case in every house, and upon every question; there always will be some few found who will express dissatisfaction at proceedings, and claim some privilege; but this can never operate as a genera] rule for a session. ■ Gentlemen ought not to request this when the general expression of the case is, that there is enough evidence before the house to decide on the resolutions. And most particularly it ought not to be indulged in a case where so much manifest mischief would attend its inevitable consequences —delay. Let gentlemen recollect the nature of the case—the president of the United States is charged by this house, with having violated the constitution and laws of his country, by having committed an act of dangerous interference with a judicial decision of this country; he is charged so by a member of this house. Gentlemen were well aware how much the public safety and happiness depended on a well or misplaced confidence in the executive. “Was it reasonable or right,” Mr. M. 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, until a distance of time, 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. When the evidence now in' possession of the house came to be examined, gentlemen would be unable to decide whether more would be necessary than there possibly could be at present; if more should then be wanted, the business might with propriety be postponed. If it was possible to obtain the documents shortly, he should have no hesitation to admit of the motion; but being impossible, he felt no hesitation in declaring he should put his negative on it.

The gentleman from New York, (Mr. Livingston.) Mr. Marshall said, in his opinion, had criminated the conduct of the secretary of state, in supposing that he had withheld some of the documents. The court record was mentioned, but was it to be supposed by the executive that he was to be called upon to furnish papers the property of another department of the government, supposing them material? To procure these papers, he knew was as much in the power of the house as in his power. The house could as well dispatch a messenger as the executive. How was the president then to consider those papers asked for of him? Was he to be a menial to the house in a business wherein himself was seriously charged? Certainly not. There could be no doubt but the executive thought he had fully complied with the request of the house, where he supplied them with those immediately in his power. Mr. Bayard said he could not distinguish between the present motion and one yesterday negatived, because it must act as a discharge upon the committee of the whole house. There could be no doubt but the secretary of state had furnished all the paj>ers relative to the business in his possession; indeed he could assuredly say- so. He said he held in his hand a letter from the secretary of state in answer to one from an honourable member of the house, inquiring whether there were any more documents in his office; he answered that he had no certified copy whatever., but those which he furnished the president with from whom they came to the house. Gentlemen must then perceive that the mere operation of this resolution was an absolute and inevitable postponement of the business till another Bession. Many gentlemen, who were yesterday ashamed to vote for a postponement, would now have a plausible cover for their vote, by calling for additional proof, to accomplish the object of the resolution of yesterday, and thus he feared it would have many advocates; but however specious the pretext, he hoped it would not be carried. Mr. B. then went into an examination of the facts contained in the resolutions of Mr. Livingston, from which he deduced the impossibility of procuring anything that could be material in the prosecution of their discussion, or that could assist the house in drawing their conclusions, except any new facts could be produced, and therefore he concluded that nothing but a postponement could be the issue. ■ He farther contended, in an answer to Mr. Nicholas, that‘it was not competent for the executive to furnish papers the property of the district judge; as well might the house ask for the executive to bring the proceedings on again at their bar. In the impeachment of Blount, Mr. Bayard said, the house did not apply to the president, but appointed a committee to bring the case and all the papers to view relative to it; so it might have been in the present case. And by what authority, taking the subject in another view, could the house call upon that judge to furnish it with papers? The executive had no right to demand them of him, nor had the house. The power of the judiciary is co-ordinate with the power of the house; it is a distinct branch of the government. He would have precisely Ihe same right to call authoritatively for a copy of the journals of the house, as the house would to call upon1 him for copies of his record; his proceedings are public, his records are open to view; so are our journals; we cannot call upon him for them, though we may obtain them py paying the clerk for a copy of them, as any individual might do.

The gentleman from Maryland (Mr. Smith)had considered the notarial certificate of New York, in attestation of Nash or Bobbins’s citizenship, to be important. If that gentleman thought this a material document, Mr. Bayard said he did not, but he thought the observation very material, as it might have an improper-impression on the minds of some gentlemen. What could be more easy than for this Thomas Nash, this perjured pirate and murderer, to-, have got a certificate, either when he murdered some man from whom he might have procured it, or by purchase or favour? But there were-facts before the house, that this man was an Irishman, that his name was Nash, and not Bobbins; that it was never issued to him. and he was never entitled to it. What farther theu can be wanted? Wil

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