Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1917-01-11

House to perform the obligations OF q
treaty. the House had a right to be
consulted. In President Adams Ad-
ministration, Mr.. Livingston moved
resolutions which criticized severely
President Adams conduct extraditing to
England one Robbins. an Irishman
charged with murder on an English
ship on the high seas, who had escaped
to South Carolina where he was ar
rested President Adams wrote to the
United States judge, giving it as his
opinion that the charge of piracy
against the accused could not be sus-
tanned, and saying that If the judge
found the facts charged to be probably
true. he would issue his warrant of
extradition in response to request
from the British Government. The
Judge agreed with The President. that
the offense was not piracy. and found
there was probable cause for the charge
of murder. Robbins was delivered to
the British agent, taken to England, in
dicted, tried and hung. The Jay Treaty
provided for extradition for each coun-
try to the other of fugitives charged
with murder and other crimes. but in
view of the unpopularity Of the treaty,
Congress had passed no act providing
the usual statutory machinery for eff
fecting such extradition. The resolu-
tions charged the President in this case
with unduly interfering with the judi
cial branch of the government, and with
violating the rights Of Robbins by such
executive exercise of power.
John Marshall Unanswerable.
John Marshall was a member of the
same Congress. Livingston and Gala
tin both spoke in support of the resolu-
lions. and Marshall answered. Mar
shall's answer is one of the most con-
vincing and able legal arguments ever
made. 1t is reported that Gallatin took
notes of Marshall's argument for a
time, and then threw away his memo
randa. He was asked whether he was
going to reply to Marshall, and he said
he had intended to do so but that his
argument was unansWerable. Marshall
demonstrated that under the constitu-
tional duty imposed upon the President,
of taking care that the laws be faith
fully executed, and the provision Of the
Constitution peculiar to our country,
that treaties are laws whenever they
| contain language mandatory and not
promissory, it was not only the power
but it was the peculiar function of the
President TO perform the obligation of
the government, and 10 deliver over this
accused person who came within the
letter and the spirit of the written OBJ
LEGATION for extradition. The argument
was subsequently published in the 9Th
Wheaton, United States Supreme Court
Reports. Appendix Page /. One hun
dred years later, Mr.. Justice Gray,
speaking for the Supreme Court, cited
this argument of Marshall as a con-
/ elusive demonstration of the power Of
the President in the execution Of trea-
ties as the law of the United States.
livineston's Plural Service.
Upon his retirement from Congress,
at the end of Adams administration
and the beginning of Jeffersons, Mr..
Livingston was appointed by Mr.. JEFF
ferson to be United States District At
torney for New York. At the same
time. Governor George Clinton ap-
pointed him to be Mayor of the city of
New York. Such pluralism would not
be permitted now. but in those days it
did not evoke public criticism. Mr..
Livingston held both offices for nearly
three years. Then something occurred
which colored his whole life, and which
revealed in him defect Of character
that followed him throughout his great
career and added much to his disap-
pointment and sorrows. An epidemic of
yellow fever broke out in New York
Mr. Livingston was most active in his
efforts to stamp out the disease and to
aid those Of the people who were
stricken. He contracted the disease
himself. but after a severe illness re-
covered from it. While engaged in his
works of relief, a government agent
from Washington visited his office as
District Attorney, and examined his &C
counts. In those days the United States
Attorney collected funds for the gov
eminent and retained large sums on de-
post. The examiner found that Mr.
Livingston was short in his accounts,
and first reported the deficit as reach
ing 100000. A subsequent audit re-
duccd it, however. to 100000
Livingston Starts Again at 40.
! The deficit was due in part at least
to the embezzlement of trusted clerk.
but there was much confusion in Mr..
Livingston's financial affairs. and the
defalcation grew out of a habit which
was inveterate with him of free living
beyond his means. Livingston at once
decided all his property to the govern
ment Of the United States and resigned
both offices. The citizens of New York,
grateful to him for his great and eff
cient aid to them during the yellow
fever crisis, petitioned him to with
draw his resignation. but he declined to
change his purpose. and Immediately
left for New Orleans. where he arrived
In February, 1904. with $1,000 in his
pocket, to begin life again. He was
then 40 years of age. His first wife,
by whom he had three children, had
died In 1901. His children were too
young to take with him to New Or
leans, and leaving them with a sister,
he went alone. His love of the civil
law and his familiarity with it., his
knowledge of French and Spanish, and
his belief that there was a greater OBJ
portunity to repair his fortunes in a
new country that was bound to expand
rapidly in population and prosperity, all
induced this step. He soon established
himself at the bar of New Orleans and
came to the head Of it. He framed a
simple code of legal procedure to recon-