As I believe you have not been much troubled with my remarks on any subject, I hope you will more readily excuse the favor 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 enquiry in congress, as to enable them to provide for similar cases, I have supposed some ex­amination [Page 4] of it may be necessary, in that spirit of deference and delicacy in which all such enquiries 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 privelege 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, that to 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 honor 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 characters 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 [Page 5] 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.

The commitment of the prisoner, and the consequent demand made of him by the consul of his Britannic majesty here, were grounded on the two following affida­vits:

His honor the judge had received a let­ter some days before from the secretary of state of the United States, mentioning, that application had been made by the Bri­tish minister, Mr. Liston, to the president, for the delivery of the prisoner under the 27th article of the treaty, and contain­ing these words—The president "Ad­vises and requests" you to deliver him up.

This letter was not read in court, though it was shewn to the counsel on both sides.

The following certificate and affidavit were produced in behalf of the said pri­soner.

The signature made by the prisoner to this affidavit in court, appeared to be in the same hand writing as the signature to the one made in 1791, from which circum­stance it is presumable, that Jonathan Rob­bins is the prisoner's real name. The body of the affidavit made in New-York, in 1796, was printed; the names, dates, sig­natures, &c. were filled up in writing; it had the notarial seal of of John Keese, esq affixed, and had the appearance of be­ing a genuine paper deemed at that day by seamen to be a protection.

It appears, however, by the result, that [Page 12] 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 U. States, if claimed under the circumstances of the prisoner.

It appears by the preceding statement, that the judge, under the circumstances of this case, 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 shew, 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 marine, or to shew certifi­cates or proofs 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 of papers, no intreaties availed [Page 13] 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, from the decision, have delivered them to a similar demand, neither influence, friends, or for­tune could save 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 or 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 [Page 14] 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 all 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 be constantly exerted against the exercise of tyranny or oppression, by whatever nation committed, or to whomsoever 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, tend therefore, the judge conceived himself not only authorised, but bound to inter­fere. [Page 15] 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 "trevial 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 criminalty 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 foregn 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. 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 torn from his country and connections, and deprived of all the rights [Page 16] of citizenship, and sent to be tried by a foreign tribunal, acting with 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, endeavor 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 [Page 17] Robbins, declare he was boatswains's mate on board the Hermione, when the was carried into the port of "Cavilla;" and that sometimes, when he was drunk, he would mention the Hermione, clench his fist, and say, "bad luck to her."

From the 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 does not appear that he was shewn 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 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 courts, to operate to conviction. An elegant writer, treating on this subject, [Page 18] says, "the 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 never were committed; of things stolen, which had never quitted the possession of the ow­ner."

The evidence of words alledged 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.

If every situation, therefore, in which Portlock can be viewed as 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 [Page 19] The whose of lieutenant Forbes's exa­mination says, that a man confined in the gaot of this district, who calls himself Rob­bins, but whose real name he believes to be Thomas Nash, was a seaman for a certain term 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 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 by violence 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 given—whether by respectable, or unprincipled witnesses; by such as were intimidated and forced into confession of any thing—or by ignorant and illiterate [Page 20] men, standing (without a jury to interpose their lenient and impartial decisions) before a court of strict military officers, the se­verity and dispatch 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 was 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 decision 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 a 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.

1st. Whether the judge was strictly au­thorised; and ff there was a doubt, whether he ought to have decided alone upon this question? And,

[Page 21] 2dly, Whether in deciding, he had any and what discretion, as to the nature of the evidencee 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 the law 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 [Page 22] 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 30 sttripes, 100 dollars fine, and six mouths 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 decid: this authority is given to the circuit courts.

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 de 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 council at the bar, and to have seen decided by the supreme court.

[Page 23] 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 to say that the law of Congrdss respect­ing fugitives from justice, in the different states, makes them deliverable on a bill found, or BY AN AFFIDAFIT, 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 the 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 the SINGLE JUDGE who delivered him may be, when once dili­vered he is for ever deprived of this invalua­ble privilege. The moment the order is given, HE IS BURIED IN CHAINS ON BOARD AN ARMED CUTTER, from whence, [Page 24] 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; when 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 [Page 25] quoted as precedents, without the utmost caution and deliberation.

They should have reflected, that in all trials where there was a claim of birth right 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 ^* In this instance they ought certainly to have done so. The tes­timony was slight and trivial; it was nearly ALL HEARSAY; it was indispensible there­fore to justice, that the prisoner should have had an opportunity of sending to New-York [Page 26] and Connecticut to prove, if he could 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 be was bound by no particular act or restriction, but at li­berty to declare the nature of the evidence on which in his opioion so important a decision [Page 27] should have been made. Supposing him, as the district Judge to have been at all au­thorised to decide his discretionary power, certainly it 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 enquiry then is what is the proof which the English law 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 dependance of the judges on the crown, from which they re­ceive their appointment, and to whom they may be looking up for further promotion and honor, that of being removable by an address [Page 28] 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 sheriffs having the power to summons 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 hare 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 the 2d and 3d Philip and Mary, chapter [Page 29] 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 procure­ment 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 if not to be insisted upon 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 as many inconveniences, as well as expence 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 on it; and the public can now judge whether the testimony sub­mitted [Page 30] 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 once convince us, that Mr. Jay could only have meant private acts of premeditated and deliberative murder, aris­ing from motives unconnected with any attempts which individuals, coming to [...]e 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 impressment, it is cer­tainly as difficult to distinguish what is mur­der, as what is piracy. Upon an occasion [Page 31] 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 Vattel 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, that right as subject 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 rerritory as to jurisdiction, as completely as its land 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 rights 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 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 [Page 32] 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 countries have been en­tirely settled by them, with scarce the inter­mixture of any other. Their 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 [Page 3] 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 number of sea­men are necessary, to what portion of their citizens can they look with more 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 late 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 [Page 33] 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 receive from the secre­tary of state, mentioning, that "THE PRE­SIDENT ADVISED AND REQUESTED THE DELIVERY OF THE PRISONER," because it had made some noise, and I 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 indentity 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 [Page 35] to execute the treaty, and that the letter to the judge had no other intent. This I re­ally believe to be the case; but the noise it has made will shew the extreme impropriety of the higher executive officers of our gov­ernment ever touching in the most distant manner on any subject 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 shew 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 over 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 unconstitutional. 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 or laws, or any [Page 36] act 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 ease. 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: so 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 [...] any agreements, respecting fugitives from justice except with nations whose citizens possess the right of trial by jury, and willing to recipro­cate so indispensible a provision.