Notes on John Marshall’s Speech
[after 7 Mch. 1800]
- 1. it was a Pyracy by the law of nations, & therefore cognisable by our courts.
- 2. if alleged to be a murder also, then, whether he was not an impressed American was an essential enquiry.
- 3. tho’ the President,1 as a party subordinate to the court might enter a Nolle prosequi, a requisition in the style of a Superior was a violation of the Constitutional independancy of the Judiciary.
MS (ViHi); written in TJ’s hand on verso of last page of printed copy of Speech of the Hon. John Marshall, Delivered in the House of Representatives, of the United States, on the Resolutions of the Hon. Edward Livingston, Relative to Thomas Nash, Alias Jonathan Robbins (Philadelphia, 1800).
Marshall’s speech to the House of 7 Mch. was a defense of John Adams’s action in extraditing Jonathan Robbins. He argued that the validity of extradition rested on three propositions: that the case was covered under Article 27 of the Jay Treaty, that the question was one for the executive and not the judiciary, and that the president therefore had not interfered with a judicial decision. Marshall claimed Robbins was extradited not for piracy, a crime beyond any jurisdiction and therefore against all nations, but for murder, which was comprehended by the treaty and punishable under the jurisdiction of Great Britain. The authority of the judiciary, he believed, did not extend in all questions but rather in all cases in law and equity arising under the Constitution. He clarified the distinction between legal and political issues, claiming that the court’s sole authority was in the legal realm while Adams’s actions were in the political and thus defensible (Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends , 4:82–109; Frances Howell Rudko, John Marshall and International Law: Statesman and Chief Justice [New York, 1991], 86–8).
1. TJ first wrote “as a party might enter a Nolle prosequi, he could not controul the court as a superior by a requisition” before altering the passage to read as above.