Speech of John Marshall, 10 ANNALS OF CONG. 613 (1800), reprinted in 18 U.S. (5 Wheat.) Appendix at 26-9 (1820)

 

[Resolutions were introduced in the House of Representatives challenging the Presidentís

authority to extradite to Great Britain one Thomas Nash, alias Jonathan Robin, accused of committing a murder aboard a British vessel on the high seas.John Marshall, then a member of the House of Representatives, support the Presidentís power to decide whether extradition was required by treaty and, if so, whether to execute it.]

 

The case was in its nature a national demand made upon the nation.The parties were 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.

He possesses the whole executive power.He holds and directs the force of the nation.Of consequence, any act to be performed by the force of the nation is to be performed through him.

He is charged to execute the laws.A treaty is declared to be a law.He must then execute a treaty, where he, and he alone, possesses the means of executing it.

 

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The treaty, which is a law, enjoins the 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 be done, it seems the duty of the executive department to execute the contract by any means it possesses.

 

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, there was an act of Congress is a 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 offence been here committed; could the president, who is bound to execute the laws, have justified a 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 constitution department, but seems to be the proper department to which the power in question may most wisely and most safely be confided.

 

The department which is entrusted with the whole foreign intercourse of the nation, with the negotiation of all its treaties, with the power of demanding a reciprocal performance of the article, which is accountable to the nation for the violation of its engagements with foreign nations, and for the consequences resulting from such violations, seems the proper department to be entrusted with the execution of a national contract like that under consideration.

 

If at any time policy may temper the strict execution of the contract, where may that political discretion be placed to safely as in the department whose duty it is to understand precisely the state of the political intercourse and connexion between the United States and foreign nations, to 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 department too, independent of judicial aid, which may, perhaps, in some instances be called in, is furnished with a great law officer, whose duty it is to understand and to advise when the casus foederis occurs.And if the president should cause to be arrested under the treaty an individual who was so circumstances as not to be properly the object of such an arrest, he may perhaps bring the question of the legality of his arrest before a judge by a writ of habeas corpus.

 

It is then demonstrated, that according to the practice and according to the principle of the American government, the question whether the nation has or has not bound itself to deliver up any individual, charged with having committed murder or forgery within the jurisdiction of Britain, is a question, the power to decide which rests alone with the executive department.

 

 

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