“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. “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 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.