Imágenes de páginas
PDF
EPUB

2. The second question is answered with equal explicitness by the order of the commissioners just referred to; for the permission is "to wharf and build" to the channel; and it is further directed, thereby, that "the buildings on such wharves or made ground shall be subject to the general regulations for buildings in the city of Washington, as declared by the President." As those must, of necessity, be all beyond the line of Water street, the buildings on them must be so of course; and, therefore, the proprietors of water-lots have a right to erect buildings beyond the line of Water street, if the commissioners had any authority to give them such right.

There lies an objection to this part of the order, which, from any legis lative acts or documents submitted to me, is perfectly insuperable. It is this: that the commissioners had no power to make the order. Their whole authority over this subject is derived from the law of Maryland; and by that law they are restricted to the licensing of wharves; but no authority is superadded to license buildings on those wharves. I am, therefore, of opinion, as at present advised, that this part of the order exceeded their authority, and is therefore void..

The whole subject of licensing wharves, I take it, is now under the control of the commissioner, who, in the exercise of this power, is himself under the control of the President; and the authority to build on those wharves is under the sole control of the President; the orders of both being subject to repeal or modification, at their pleasure, so as to produce no retrospective effect.

The owners of water-lots have no right to complain of this decision as to buildings; because it appears, by the report of the surveyor, (Mr. King,) that the plans of the city exhibited at the time of the sales of those lots all presented a Water street as the boundary of the building-lots, and that on one or more of them wharves only were exhibited beyond the line of Water street; indicating that the privilege of wharves only was promised beyond that line.

To the PRESIDENT OF THE UNITED STATES.

WM. WIRT.

DEATH-WARRANTS.

The President will issue death-warrants, in order to give effect to the laws, in cases where they are necessary by the practice of the State in which the sentence is passed.

ATTORNEY GENERAL'S OFFICE,
August 19, 1818.

SIR: I have received a letter from Judge Duvall, touching the mail-robbers sentenced to death at the spring circuit court at Baltimore. He says he has heard that the President neither intends to pardon them, nor to issue a warrant for their execution; and that this last determination is founded on the opinion that it was the duty of the court which passed the sentence to fix the day for the execution. But he says there is no law which gives the court such authority; and that the practice of the State of Maryland has been uniformly, and from time immemorial, otherwise. I believe he is right in saying that there is no law-that is, no positive ac

of Congress-which gives to the courts of the United States the express power of fixing the day. I find, on inquiry, that the courts of the United States have adopted, in this particular, the practice of the State courts in which they hold their sessions, and these are various: death warrants from the governor being required in several of the States; and in others the courts fixing the day. It is certainly desirable that there should be a uniform rule to guide the conduct of the President in this respect. Such a rule, however, can be prescribed by Congress only; and there being none such yet prescribed, it seems to me that the President must, of necessity, to give effect to our laws, follow that which the courts have adopted: that is, issue warrants for execution in all cases where they are made necessary by the practice of the State in which the sentence is passed. Such is the case in the present instance, and the case has become one of great emergency; for the convicts, finding that they are not to be pardoned, have become desperate, and have once actually broken the prison and made their escape: but they have been retaken. They will, however, unquestionably attempt it again, and probably with more success, unless they should be guarded at an enormous expense to the United States. I submit to you, therefore, sir, the necessity of drawing the President's immediate attention to this subject;

And have the honor to be, &c.,

To the SECRETARY OF STATE.

WM. WIRT.

THE POWER TO CAUSE AN ARREST.

Arrest for trial is a proceeding belonging to the judiciary, not to the executive branch of the government; and the warrant of arrest must be founded on an information on oath. The President has no power to cause an arrest to be made except upon probable cause supported by oath or affirmation. (Vide article VI of Amendments to the Constitution.) The President may issue his proclamation against an offender who has once been regularly arrested and made his escape; for, in such case, the regularity of the arrest implies that the probable case has been furnished on oath according to the constitution.

ATTORNEY GENERAL'S OFFICE, September 8, 1818. SIR Mr. Calhoun has called on me, at the desire of the Secretary of State, (now absent,) for the purpose of inquiring whether I would advise a proclamation against Obed Wright, of Georgia, or private instructions to the marshals of the several districts and Territories, for the apprehension of the fugitive. On inquiry at the Department of State, no precedent is to be found for either course, as you will find from Mr. Brent's answer to some questions put by me, which I enclose. The case to which he alludes by memory is that, he says, of Bradford, who was implicated in the Pennsylvania insurrection. But we know not what degree of evidence General Washington might have had against Bradford to warrant his proclamation; or whether he relied upon the openness and notoriety of the fact of the insurrection, which was very little, if anything, short of bellum flagrans. The result of the inquiry is, that there is no certain precedent to guide us as to either course; and I have very strong doubts (in which Mr. Calhoun concurs) whether either of the courses proposed is warranted by the constitution. Arrest for trial is a proceeding which belongs to the judicial, not to the executive branch of the government; and the warrant

of arrest is always preceded by evidence-ex parte to be sure, but still evidence to wit: information on oath. Can the President of the United States order an arrest either by proclamation or by instructions to marshals? Would not such proclamation or instructions be, in effect, a warrant to arrest? It is very clear to me that they would; and that either of them would be a violation of the sixth article of the amendments of the constitution of the United States, which provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. It was one of the strong grounds of objection to the cele brated alien law, that it gave the President power to airest; "a power,' says Judge Tucker, "which it was presumed did not exist either in the executive of the State or of the federal government." (4th Tucker's Black., 290.)

[ocr errors]

Would not a better course be, to have an indictment submitted to the next grand jury for the circuit court of Georgia; and, if found by them, to cause authenticated copies of it to be furnished to the several marshals and collectors of the United States, with instructions, if Wright should make his appearance anywhere within the United States, to cause him to be arrested according to law, with special reference, if necessary, to the sixth amendment to the constitution of the United States and the thirtythird section of the judiciary act, which points out the mode of arrest? There is nothing in this suggestion which denies to the President the power of issuing his proclamation against an offender who has once been regularly arrested and has made his escape; for the regularity of the arrest implies that the probable cause has been furnished on oath or affirmation according to the amendment of the constitution, and that the warrant of arrest has been duly issued and has had its effect.

I shall await your instructions on this subject; and have the honor to be, &c.,

To the PRESIDENT OF THE UNITED STATES.

WM. WIRT.

EXECUTIVE POWER TO DISCHARGE PUBLIC DEBTORS.

The President has no power to discharge public debtors imprisoned on mesne process; but only debtors imprisoned on execution, at the same time requiring the judgment to remain good, to be satisfied out of any estate then, or afterwards, belonging to the debtor.

OFFICE OF THE ATTORNEY GENERAL,
September 8, 1818.

SIR: I have examined the case of John Gates, jr., represented by his brother, Mr. Gerritt Gates, whose letter I return. It is unnecessary to say anything of the merits of the case, because I am satisfied that you have not the power to discharge the prisoner, admitting the case, upon its merits, to be a proper one for the exercise of such a power. The act of Congress which gives the President his only power to discharge public debtors, is the act of the 3d March, 1817, entitled "An act supplementary

to 'An act for the relief of persons imprisoned for debts due the United States.' This act expressly limits the power of the President to cases in which the person is imprisoned upon execution, and requires that the judgment which shall have been obtained shall remain good and sufficient in law, and may be satisfied out of any estate which may then, or at any time afterwards, belong to the debtor. Lest you should not have the act with you, I enclose a copy of it; by which you will see that it is not applicable to the case of John Gates, against whom there has been yet no judgment, and who is imprisoned, not upon execution, but upon mesne

process.

To the PRESIDENT OF THE UNITED STATES.

[WM. WIRT.]

NEUTRALITY.

A vessel fitted out at Savannah with armament, munitions, and sea stores, and afterwards found with a commission from the republic of Venezuela to cruise against the subjects of the King of Spain, and having sailed on such a cruise, but under another name, seized at Savannah on the charge of having been fitted out in a port of the United States to cruise against the King of Spain, is a fit case for adjudication, and not one calling for the interference of the government.

OFFICE OF THE ATTORNEY GENERAL,

September 10, 1818.

SIR: The case of the Corony, Captain Saunders, seized at Savannah on a charge of having been fitted out in a port of the United States to cruise against the King of Spain, with whom we are at peace, has been submitted by the Secretary of State for my opinion; and, in his absence, I take the liberty of communicating the opinion directly to you.

Captain Saunders applies for an order to discharge his vessel from further prosecution, on the ground that she is a legitimate armed vessel, lawfully sailing under the flag of the republic of Venezuela, and regularly commissioned by Admiral Brion. Although both the statements and the documents furnished by Captain Saunders are entirely ex parte, yet, from his own showing, I consider it a fair case for adjudication; for, in his letter to the Secretary of State, he admits that the Corony is the same vessel which, on the 1st day of April last, cleared out from the custom-house at Savannah, with the munitions of war then on board with which she was apprehended; and by reference to the manifest which he encloses in his letter, (in support, it is presumed, of this assertion,) it will be found that she then cleared out under the name of the Felix, having on board three cases of muskets, two four-pounder cannon with carriages, sixteen kegs of powder, and no other cargo, except sea stores. And he admits that, thus armed, she took a commission to cruise against the subjects of the King of Spain, and did sail upon such cruise. At this time the act" to prevent citizens of the United States from privateering against nations in amity with, or against the citizens of, the United States," and the act passed the 3d March, 1817, "more effectually to preserve the neutral relations of the United States," were both in force, the provisions of which are familiar to you; and I therefore think it unnecessary to say more than that, in my opinion, the case of the Corony is a fit case for adjudication,

and by no means one which calls for the extraordinary interference of the government.

To enable you the more readily to test the accuracy of this opinion by the facts communicated by Captain Saunders, I enclose his letter to the Secretary of State, with the documents which that letter covered.

To the PRESIDENT OF THE UNITED STATES.

[WM. WIRT.]

NEW TRIALS BEFORE COURTS-MARTIAL.

The President of the United States has the power to order a new trial before a court-martial where, in his opinion, the court erred on the first trial in excluding proper testimony.

The provision in the Articles of War that "no officer, &c., shall be tried a second time for the same offence," is borrowed from the common law, and is not held, in either civil or military tribunals, to preclude the accused from having a second trial on his own motion.

The plea of autres foits acquit, or convict, is the privilege of the accused, which he may use or waive at pleasure; if he does not choose to use it, courts will not take notice of it so as to bar a trial.

It is error for a court-martial to refuse a second trial to the accused when the same has been ordered by the President.

OFFICE OF THE ATTORNEY GENERAL,
September 14, 1818.

SIR: The Secretary of War has submitted to me, by your desire, the proceedings of a court-martial, held at Plattsburg, in the State of New York, on the 5th day of June last, in the case of Captain Nathaniel N. Hall, of the corps of artillery; in which case the court, under the opinion of the judge advocate, refused to arraign Captain Hall, on the ground that he had been previously tried by a court-martial on the same charge, and that a new trial was forbidden by the 87th article of war. The general order prefixed to this report shows that the sentence of the first court, which cashiered this officer, was disapproved by the President; and it appears by the proceedings that the new trial ordered, by a court composed of different members, was an act of mercy to the party accused, in consonance with his wishes, and at his own desire. The grounds on which the new trial was ordered are also distinctly stated in the general order prefixed to the proceedings which have been handed to me. They were-1st, that the first court erred in refusing to admit testimony to prove the general character of Captain Hall; and, 2dly, in refusing to admit evidence to prove that a quarrel had taken place between the prisoner and the principal witness against him, on the night on which the offence is charged to have been committed. The question presented for my opinion is, whether a President of the United States has the right, under these circumstances, to order a new trial?

It is a clear principle that the President has no powers except those which he derives from the constitution and laws of the United States; if the power in question, therefore, cannot be fairly deduced from these sources, it does not exist at all.

By the constitution, the President is made commander-in-chief of the army and navy of the United States. But, in a government limited like ours, it would not be safe to draw from this provision inferential powers, by a forced analogy to other governments differently constituted. Let us draw from it, therefore, no other inference than that, under the constitu

« AnteriorContinuar »