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    John Marshall

    CHAPTER II ARGUMENTS AND SPEECHES; LIFE OF WASHINGTON; RELATIONS WITH JEFFERSON

    There is little room for quotations from Marshall's speeches or dispatches. Some reference has already been made to his earliest reported argument in court, in 1786. In the Virginia Federal Convention, in 1788, Marshall's principal speeches related to the subjects of taxation, the militia, and the judiciary. These, so far as preserved, are found in the third volume of Elliot's Debates, and in Dr. Grigsby's very interesting History of that Convention, in the tenth volume of the "Virginia Historical Collections." Nothing remains of a famous speech in support of Jay's treaty, at a public meeting in Richmond in 1795. A summary of his strong but unsuccessful argument in 1796, in the case of Ware v. Hylton (3 Dallas 199), as to the claims of British{40} creditors, his only case before the Supreme Court of the United States, is preserved in the volume of reports. This argument attracted much attention among the statesmen at Philadelphia. "I then became acquainted," he wrote to a friend, "with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr. Sedgwick of Massachusetts, Mr. Wadsworth of Connecticut, and Mr. King of New York.... I was particularly intimate with Mr. Ames."

    After Washington's death in 1799, Marshall, in a short and well-known speech, moved the resolution of the House of Representatives. A little afterwards he made a great and admirably thorough address in a matter which then deeply affected the public mind; from this, his greatest public speech,[17] a quotation is given below. It was made March 4, 1800,{41} in defense of the President's action in the case of Thomas Nash, alias Jonathan Robbins. This person, a British subject, but claiming to be an American citizen, and to have been impressed into the British navy, was charged with piracy and murder on board a British ship of war in 1791. Being found in Charleston, S. C., he was arrested in 1799, at the instance of the British consul, and held to await an application for his extradition under article 27 of the treaty with Great Britain of 1795. That article bound the two countries reciprocally to deliver up, on request of the other, persons charged with murder committed within the jurisdiction of that other. Evidence of criminality was first to be furnished, such as would justify commitment for trial on the same charge in the country where the accused was found.

    An application for extradition was made to the federal authorities in Charleston, but at their suggestion this was transferred to the President, through the Secretary of State. The Secretary informed Bee, the{42} United States District Judge, of the President's "advice and request" that Nash should be delivered up, at the same time referring to the clause in the treaty as to the necessary evidence of criminality.[18] The judge on July 1, 1799, informed the Secretary that he had notified the British consul that on the production of such evidence, the prisoner would be delivered up when the consul was ready to receive him. The delivery was made; and on September 9 of the same year, the British admiral was able to inform the British Minister that Nash "has been tried at a court martial, and sentenced to suffer death, and afterwards hung in chains; which sentence has been put into execution."

    These events were used with great effect by the political opponents of the administration. When Congress met, the President was called upon by the House of Representatives{43} for the papers relating to them; and when they were sent in, Edward Livingston, of New York, submitted resolutions condemning the action of the executive, on the ground that the determination of the questions involved in the case "are all matters exclusively for judicial inquiry;" that the acts of the President "are a dangerous interference of the executive with judicial decisions;" and that the compliance of the district judge "is a sacrifice of the constitutional independence of the judicial power." After a full debate, these resolutions were negatived by a decided vote. Marshall's very able argument vindicated the action taken, and laid down principles which have ever since governed the course of the government in such cases.

    The following passages will afford a specimen of the style and method of this address, a style and method which were characteristic of all Marshall's work:- "The same argument applies to the observations on the seventh article of the amendment to the Constitution. That article{44} relates only to trials in the courts of the United States, and not to the performance of a contract for the delivery of a murderer not triable in those courts. "In this part of the argument, the gentleman from New York [Mr. Livingston] has presented a dilemma, of a very wonderful structure indeed. He says that the offense of Thomas Nash was either a crime or not a crime. If it was a crime, the constitutional mode of punishment ought to have been observed; if it was not a crime, he ought not to have been delivered up to a foreign government, where his punishment was inevitable.

    "It has escaped the observation of that gentleman that if the murder committed by Thomas Nash was a crime, yet it was not a crime provided for by the Constitution or triable in the courts of the United States; and that if it was not a crime, yet it is the precise case in which his surrender was stipulated by treaty. Of this extraordinary dilemma, the gentleman from New York is himself perfectly at liberty to retain either form.{45}

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

    "The gentleman from Pennsylvania [Mr. Gallatin] and the gentleman from Virginia [Mr. Nicholas] have both contended that this was a case proper for the decision of the courts, because points of law occurred, and points of law must have been decided in its determination. The points of law which must have been decided are stated by the gentleman from Pennsylvania to be, first, a question whether the offense was committed{46} within the British jurisdiction; and, secondly, whether the crime charged was comprehended within the treaty. "It is true, sir, these points of law must have occurred, and must have been decided, but it by no means follows that they could only have been decided in court. A variety of legal questions must present themselves in the performance of every executive duty, but these questions are not therefore to be decided in court. Whether a patent for land shall issue or not is always a question of law, but not a question which must necessarily be carried into court. The gentleman from Pennsylvania seems to have permitted himself to have been misled by the misrepresentations of the Constitution made in the resolutions of the gentleman from New York; and, in consequence of being so misled, his observations have the appearance of endeavoring to fit the Constitution to his arguments, instead of adapting his arguments to the Constitution.

    "When the gentleman has proved that these are questions of law, and that they{47} must have been decided by the President, he has not advanced a single step towards proving that they were improper for executive decision. The question whether vessels captured within three miles of the American coast, or by privateers fitted out in the American ports, were legally captured or not, and whether the American government is bound to restore them, if in its power, were questions of law, but they were questions of political law, proper to be decided, and they were decided by the executive, and not by the courts. The casus fœderis of the guaranty was a question of law, but no man could have hazarded the opinion that such a question must be carried into court, and can only be there decided. So the casus fœderis, under the twenty-seventh article of the treaty with Britain, is a question of law, but of political law. The question to be decided is, whether the particular case proposed be one in which the nation has bound itself to act, and this is a question depending on principles never submitted to courts. If murder should be committed{48} within the United States, and the murderer should seek an asylum in Britain, the question whether the casus fœderis, of the twenty-seventh article had occurred, so that his delivery ought to be demanded, would be a question of law, but no man would say it was a question which ought to be decided in the courts.

    "When, therefore, the gentleman from Pennsylvania has established that, in delivering up Thomas Nash, points of law were decided by the President, he has established a position which in no degree whatever aids his argument. The case is in its nature a national demand, made upon the nation. The parties are the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance. The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.... "The treaty, which is a law, enjoins the{49} performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign intercourse and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this is done, it seems the duty of the executive department to execute the contract by any means it possesses.

    "The gentleman from Pennsylvania contends that, although this should be properly an executive duty, yet it cannot be performed until Congress shall direct the mode of performance.... The treaty stipulating that a murderer shall be delivered up to justice is as obligatory as an act of Congress making the same declaration. If, then,{50} there was an act of Congress in the words of the treaty, declaring that a person who had committed murder within the jurisdiction of Britain, and sought an asylum within the territory of the United States, should be delivered up by the United States, on the demand of his Britannic Majesty and such evidence of his criminality as would have justified his commitment for trial, had the offense been committed here; could the President, who is bound to execute the laws, have justified the refusal to deliver up the criminal by saying that the legislature had totally omitted to provide for the case?

    "The executive is not only the constitutional department, but seems to be the proper department to which the power in question may most wisely and most safely be confided.... If, at any time, policy may temper the strict execution of the contract, where may that political discretion be placed so safely as in the department whose duty it is to understand precisely the state of the political intercourse and connection between the United States and foreign nations, to{51} understand the manner in which the particular stipulation is explained and performed by foreign nations, and to understand completely the state of the Union?"

    This clear, strong, convincing speech, of which I have quoted but a small portion, settled the question then in dispute, and the principles here laid down have controlled the action of the government ever since. Very soon after entering upon his duties as Chief Justice, Marshall undertook to write the "Life of Washington." This gave him a great deal of trouble and mortification. It proved to be an immense labor; the publishers were importunate, and he was driven into print before he was ready. The result was a work in five volumes, appearing from 1802 to 1804, full of the most valuable and authentic material, well repaying perusal, yet put together with singular lack of literary skill, and in many ways a great disappointment.[19] In the later years of his life,{52} he revised it, corrected some errors, shortened it, and published it in three volumes: one of them, in 1824, as a separate preliminary history of the colonial period, and the other two, in 1834, as the "Life of Washington." This work, in its original form, gave great offense to Jefferson, written, as it was, from the point of view of a constant admirer and supporter of the policy of Washington; a "five volume libel," Jefferson called it.

    Jefferson had ludicrous misconceptions as to Marshall's real character. It is said that after Burr's trial, in 1807, all personal intercourse between them ceased.[20] Referring in 1810 to the "batture" case, in which Edward Livingston sued him, and which was to come before Marshall, Jefferson says that he is certain what the result of the case should be, but nobody can tell what it will be; for "the Judge's mind [is] of that gloomy malignity which will never let him forego the opportunity of satiating it upon a{53} victim.... And to whom is my appeal? From the judge in Burr's case to himself and his associate justices in Marbury v. Madison. Not exactly, however. I observe old Cushing is dead. [Judge Cushing had died a fortnight before.] At length, then, we have a chance of getting a Republican majority in the Supreme Judiciary." And he goes on to express his confidence in the "appointment of a decided Republican, with nothing equivocal about him."

    Who was this decided and unequivocal Republican to be? Jefferson was anxious about it, and wrote to Madison, suggesting Judge Tyler, of Virginia, as a candidate, and reminding the President of Marshall's "rancorous hostility to his country." Who was it, in fact, that was appointed? Who but Joseph Story!-a Republican, indeed, but one whom Jefferson, in this very year, was designating as a "pseudo-Republican," and who soon became Marshall's warmest admirer and most faithful supporter.

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