Page:Sketches of the life and character of Patrick Henry.djvu/385

 Oreat Britain, and found their judgment upon it. On this question, he observes that the court were not called upon to step out of their appropriate sphere, in order to invade the province of the jury by trying facts; the facts were all agi'eed by the pleadings; the court were merely called upon to say what was the law arising on those facts. The existence or non-exist- ence of the treaty, was a legal inference from the facts agreed; which the court alone were competent to de- cide. The plaintiff himself had forced this question on the court, by relying in his replication on the treaty, as restoring his right to recover this debt. He sets up his right under this instrument expressly, and then questions the jurisdiction of the court to decide upon the instrument! The treaty, quoad hoc, is the covenant of the parties in this suit: the question presented by the pleadings is, whether the plaintiff, who by that covenant, has taken upon himself the performance of a precedent condition, can claim any benefit under it, until he shall show that this precedent condition has been performed. On this question said he, the gentle- man^s argument is, that the court have no power to de- cide on the construction of the covenant, which he him- self has brought before them; that they have nothing to do with the dependence or independence of the stipulations, or the reciprocal rights of the parties, to claim under the covenant, without showing a previous performance on theil' respective parts! He, on the con- trary, insisted that under the constitution of the United States, the question belonged, peculiarly and exclu- sively, to the judicial department: that by the consti- tution, it was expressly provided that the judicial power should extend to all cases arising under treaties: that the law of treaties embraced the whole extent of natural z z

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