ALTERING THE NUMBER OF NAVAL COMMISSIONS. The numbering of naval commissions is not the act of the President and Senate, but of the Secretary of the Navy, to prevent questions of rank from arising among officers holding commissions of the same date. Whenever a change of the number of a commission is proposed, the persons affected by the proposed change ought to be heard as to the facts. Office of the ATTORNEY General, SIR: Your letter of yesterday's date submitted for my consideration a memorial of Lieutenant Oellers, and other lieutenants of the navy, addressed to the President of the United States, complaining that Lieutenant Henry S. Newcomb, who had been commissioned on the same day with them, and whose commission was numbered 25, had been transfer. red to number 6, which number had become vacant by the death of Lieutenant Bullus; by which measure he has improperly obtained precedence of them in rank; and praying for redress. The question which I understand to be referred to me is, whether the Secretary of the Navy has authority to alter the number of Lieutenant Newcomb's commission? There is no law on this subject. The acts of Congress are entirely silent upon it; and it is from them alone that the powers of that officer, like those of every other under government, are derived. Relative rank among officers depends in general on the dates of their commissions. The commissions in this case bear the same date. The numbering the commissions is not an act of the President and Senate, but is, I am informed, an act of the Secretary of the Navy alone, in order to prevent questions of rank from arising among the officers from the circumstance of the identity of date in the commissions. Hence the question referred to me is obviously not one of law, but of practice merely in the Navy Department. If, however, the Secretary of the Navy has no legitimate authority to alter the number of any one of these commissions, that of Mr. Newcomb, according to the statements in the memorial, has been altered without authority: and the alteration consequently is a void act, which ought to be corrected by restoring the original number. This, however, takes for granted the facts as stated in the memorial. The means of testing their accuracy may, I presume, be furnished at the Navy Department; if not, Mr. Newcomb, the person to be affected by the proposed step, ought, I should think, to have an opportunity of being heard in relation to the facts. I have the honor to be, sir, very respectfully, your obedient servant, WM. WIRT. To the SECRETARY OF THE NAVY. LAND WARRANTS TO CANADIAN VOLUNTEERS. Military bounty land warrants to Canadian volunteers, under the act of March 5, 1816, are not assignable. Such a warrant, when fraudulently obtained, may be cancelled so as to prevent its use for any mischievous purpose. OFFICE OF THE ATTORNEY GENERAL, December 26, 1819. SIR: The two questions submitted for my opinion are1. Are the warrants for military bounty land, granted to certain Cana dian volunteers under the act of 5th March, 1816, assignable or transferable? 2. If, before a patent issues which would be predicated on a warrant of this class, it is discovered that the warrant was fraudulently obtained, is the Secretary of War authorized to annul it? 1. The warrant has nothing of a negotiable character on its face. It does not state that the volunteer and his assigns, or that the volunteer or the holders of the warrant, is entitled to the lands. It certifies only that the volunteer himself is entitled. Nor does the act under which these warrants issue make them assignable; nor does it give any authority to the Commissioner to issue a patent to the assignee or holder of the warrant. Taking the question, therefore, on this act alone, it might well be questioned whether the Commissioner could properly issue a patent to the assignee of such a warrant. But, considering this act as part of a system of legislation on the subject, and therefore to be construed in connexion with the acts of the 6th May, 1812, and the 16th April, 1816, (both of which expressly prohibit the assignment of military warrants for land bounty, and declare the transfer of them invalid;) considering, too, that these warrants to Canadian volunteers, are as completely within the policy of these prohibitions as military land warrants of any other description;-I hold it the safer opinion that they cannot pass by assignment or transfer. 2. A warrant obtained by fraud is of no value to the holder, and I cannot, therefore, conceive any injury which can result from cancelling it. On the contrary, the fraud being fixed, I consider it the duty of the Secretary, both towards the government and towards society, to disable the warrant from being used as an instrument of further mischief. But, since the evidence which fixes the fraud must, from the necessity of the case, be always ex parte in relation to the holder of the warrant, whose character as well as rights are staked on the correctness of the Secretary's decision, I submit as the better course to cancel the warrant in such a way as to incapacitate it for circulation, without rendering it illegible; noting on the warrant, in a few words, the cause of its cancellation, and then handing it back to the person who presented it, to seek any redress to which he may be entitled before the tribunals of his country. I have the honor to be, &c., &c., WM. WIRT. To the SECRETARY OF WAR. POWER OF PRESIDENT TO MITIGATE SENTENCE OF DEATH. The President may so far mitigate a sentence of death pronounced by a naval court-martial as to substitute a milder punishment in its stead. OFFICE OF THE ATTORNEY GENERAL, SIR: Your letter of the 30th ultimo submits, for my opinion, the power of the President to change the sentence of death, which has been passed by a general court-martial on William Bansman, a private in the marine corps, into a sentence of "service and restraint for the space of one year; after which, to cause him to be drummed from the marine corps as a disgrace to it." By the 42d article of the rules and regulations for the government of the navy of the United States, (to which the marine corps is subjected by vol. 3, Laws United States, p. 96,) it is provided that the President of the United States shall possess full power to pardon any offence committed against these articles, after conviction, or to mitigate the punishment decreed by a court martial," (same vol., p. 358.) The power of pardoning the offence does not, in my opinion, include the power of changing the punishment; but the power to mitigate the punishment decreed by a court-martial cannot, I think, be fairly understood in any other sense than as meaning a power to substitute a milder punishment in the place of that decreed by the court martial; in which sense, it would justify the sentence which the President purposes to substitute in the case under consideration. The only doubt which occurs to me as possible, in regard to this construction, is, whether the power of mitigating a punishment includes the power of changing its species; whether it means anything more than lessening the quantity, preserving nevertheless the species of the punishment. But there is nothing in the force of the terms in which the power is given that ties us down to so narrow a construction. Had the phraseology been-"the President shall have power to remit in part, or in whole, the punishment decreed by the sentence of a court-martial," he would have been restricted to the single mode of mitigation which the objection supposes-that of lessening the quantity; but a power of mitigation, in general terms, leaves the manner of performing this act of mercy to himself; and if it can be performed in no other way than by changing its species, the President has, in my opinion, the power of adopting this form of mitigation. Such is precisely the case under consideration. A sentence of death cannot be mitigated in any other way than by changing the punishment. To deny him the power of changing the punishment in this instance, is to deny him the power of mitigating the severest of all punishments; while you leave open to him the comparatively insignificant power of mitigating the milder class of punishments; or, in other words, to refuse mercy in the case in which, of all others, it is most loudly demanded. To say that the President may pardon a capital offence altogether, and thereby annul the sentence of death, is no answer to this argument. Congress foresaw that there were cases in which the exercise of the power of entire pardon might be proper; they, therefore, in the first branch of the article under consideration, give to the President the power of entire pardon. But they foresaw, also, that there would be cases in which it would be improper to pardon the offence entirely; in which there ought to be some punishment; but in which, nevertheless, it might be proper to inflict a milder punishment than that decreed by the court-martial: and hence, in another and distinct member of the article, they give him, in general terms, the separate and distinct power of mitigation. To deny him the exercise of this power in relation to a sentence of death, and to throw him, in such a case, on his own power of entire pardon, as the only act of mercy which he can exercise, would be to compel him, contrary to his reason and judgment, to extend the greatest mercy to those who had deserved it least; for while it is true that sentences of death are those which appeal most strongly to mercy, because they deal in blood, it is no less true that they are precisely those which are least worthy of an entire pardon, because they are pronounced only in cases of enormity. In other words, they are those in which the power of mitigation applies with peculiar propriety. I think, therefore, from the generality of the terms in which the 42d article of the rules and regulations for the government of the navy of the United States gives to the President the power to mitigate the punishment (any punishment) decreed by a court martial, as well as from the obvious reason of the power, that the President has the right to mitigate a sentence of death; and that every argument for the exercise of the power in inferior cases, applies a fortiori to such a sentence. And since a sentence of death can be mitigated only by changing it, my opinion is, that the President has the power, in the case of William Bansman, to substitute the milder punishment which he contemplates. It is proper to state, however, that a different construction is practically given to this power in the Department of War; for there the power of mitigation is not understood as giving the power to change the punishment. In how many instances this different construction has been given, or whether the President has, by any sentence which has reached him through that department, been called upon to pass on it, I am not informed. If this construction in that department has grown out of the exercise of the power of mitigation given to the commanding officers who order the courts-martial, under the 89th article of the Rules and Articles of War, (see vol. 4, Laws United States, p. 26,) it is very easily understood why the power of mitigation has never been exercised in such cases by changing the species; but, on the contrary, has been exercised only in lessening the quantity; because, by that article the power is confined to mitigating sentences other and less than sentences of death and cashiering an officer-in which inferior sentences the power of mitigating may be exercised without changing the species, merely by lessening the quantity. But if this be the origin of this practical construction in the Department of War, it furnishes no rule for a case where there can be no mitigation without a change. The practice under the English law carries the power of mitigating the sentence of a court-martial much farther than is necessary to the construction for which I contend. McArthur (in his first volume, page 181) gives us the case of Lieutenant Colonel Jephson, who was sentenced to be suspended from rank and pay for six months. The King, from the circumstance of the detriment which the army would sustain from so long a suspension of a field officer at so critical a juncture, (it was in 1804, and in Ireland,) deemed it indispensable that Jephson should retire; permitting him to receive the regulated price for his commission from the officer who should be appointed to suc ceed him. This," says McArthur, "on a superficial view, appears to be an alteration of the sentence.' But he defends it on the ground that it does not add to the judgment; that it subjects him to less punishment, not to more than the court had prescribed; and was, in truth, merely a mitigation of the sentence. I have the honor, &c., To the SECRETARY OF THE NAVY. WM. WIRT. TITLE TO THE PEA PATCH. The United States, being in possession of the Pea Patch under title derived from the Duke of York, may require a prosecutor to show title in himself, before any proof of title need be deduced; and a prosecutor, under deed taking for its western boundary the east side of the Delaware river and bay, can never reach the Pea Patch. OFFICE OF ATTORNEY GENERAL, January 5, 1820. SIR: It is only within a few days back that I have been put in posses. sion of copies of all the documents that can be found relative to the title to the island in Delaware river, called the Pea Patch. Even yet, the grant from the Crown, on which the title of the State of Delaware to that island is founded, has not been procured and forwarded, If such a grant ever existed, (of which the district attorney for Delaware doubts,) and its production should hereafter become necessary, it may be, I presume, obtained through our minister at London. But I apprehend it will not be necessary on the trial of the suit which Doctor Gale has instituted against the officers of the United States: because the plaintiff must show a title in himself, before the defendant in possession can be required to produce any proof of title; and Doctor Gale, according to the evidence before me, can show no title in himself; and because, if he could exhibit proof which would call upon us to show our title, we can rest, I think, securely on our length of possession under the title derived from the Duke of York, afterwards King of England. The territorial title of the State of New Jersey, under which Doctor Gale claims, takes for its western boundary, in the most express terms, the east side of the Delaware bay and river. Such is the language of the grant to the Duke of York; and such the language of that duke's deed to John Lord Berkley and Sir George Carteret. Doctor Gale, by stopping at the east side of the Delaware, will never get to the Pea Patch; and consequently cannot show such a title in himself as to authorize a judgment in his favor. The State of Delaware (whose title we hold) claims under a deed from the Duke of York, to William Penn, conveying to him the town of New Castle, and all that tract of land lying within the compass or circle of twelve miles about the same, situate, &c., upon the river Delaware; and all the islands in the said river, and the said river and soil thereof, lying north of the southernmost part of the said circle of twelve miles about the said town. If any question could exist whether the twelve miles about the town, here mentioned, indicated a circle whose radius (and not whose diameter) was twelve miles, it will be removed by reference to the next or supplemental deed from the Duke of York to William Penn, which, designing to convey the residue of the present State of Delaware, takes for its beginning a point on the Delaware river, twelve miles south of the town of New Castle: clearly manifesting that the former deed was considered as conveying the title to that point. All that part of the river (with all the islands in it) which lies to the north of this point, having then been conveyed to William Penn, and the Pea Patch being an island in the river to the north of that point, it seems clear to me that it is included in this deed; and consequently that the United States, who claim under it, have the best, and, indeed, the only valid title. I have the honor, &c., To the SECRETARY OF WAR. WM. WIRT. |