DIPLOMATIC *CORRESPONDENCE. 
 
43 
 
avert the peril*, for lack of a law of Congress in the premises.  In a word,
the 
Attorney General puts the matter distinctly upon the same considerations
as 
would govern if there were a treaty requiring extradition, but no law of
Con- 
gress providing modes and forms for executive action under it. For no one

can demand for a treaty stronger obligation or sanction than that "the
United 
States are iti duty bound to comply" with it, and that "1 to refuse
or neglect 
to comply may, under certain circumstances, afford the foreign nation just
cause 
Of war." 
The next occasion upon which the question arose for the action of the govern-

ment was in the noted case ofThomas Nash, alias Jonathan Robbins, in the

year 1799, claimed under the 27th article of the British treaty. The surrender

of the alleged criminal was made by the President, there being no act of
Con- 
gress as to the mode or agent for the execution of the stipulations of the
treaty. 
The legal question then of the power of the President to make the surrender,

which was obligatory upon the nation, was precisely the same as Attorney

General Lee had conceived it; and if his view of the necessity of an act
of 
Congress to invigorate the executive function was sound, the extradition
should 
have been refused to England in 1799, as it had been to Spain in 1797. 
The action of the Executive in the extradition became the subject of an 
earnest and most able debate in the House of Representatives, where the argu-

ments on one side and the other were pressed with the utmost skill and force.

The celebrated speech of John Marshall, sustaining the action of the President,

in its exposition of the doctrines of the law of nations and of the Constitution,

which controlled the subject, carried, with Congress and with the country,
a 
judicial weight scarcely surpassed by that awarded to any of his subsequent

judgments as Chief Justice. 
This debate, in its result, may be considered as establishing two propositions

First, that an international obligation, resting upon the government, may
be 
discharged under the Constitution without the aid of an act of Congress.
Second, 
that it was an executive and not a judicial function, to be performed by
the 
President by mere virtue of his office under the Constitution, without the
need 
of any authority from Congress, or of any agency of the coltrts.  It was
stren- 
uously contended that the function was in its nature judicial, and must be

attributed to the judicial tribunals, and the action of the President was
sought 
to be impugned as wresting the subject from the constitutional control of
the 
judiciary. 
Mr. Marshall thus announced the doctrines on this point, which received the

assent of Congress and of the country: 
"' The case was in its nature a national demand made upon the nation.
The parties were 
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 repre- 
sentative 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 thenation is to be
performed through 
him. 
"He is charged to execute the laws. A treaty is declared to be a law.
He must then exe- 
cute a treaty, where he, and he alone, possesses the means of executing it.

"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 be performed, the force of the nation, are in the
hands of this person. 
Ought not this person to perform the object, although the particulat 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 coutract by any
means it 
possesses. 
"The executive is not only the constitutional department, but seems
to be the proper de- 
partment to which the power in question may most wisely and most safely be
confided.