Gambar halaman
PDF
ePub

produce, and manufacture of France or Great Britain," or of any of their colonies or dependencies, or of any place or country in the actual possession of either; which alone are prohibited. When the cargo was actually imported into New Orleans, I think it became subject to duty, and liable to seizure if the duties were not paid or secured according to law. But, as the case appears before me, this ground of condemnation is not stated in any of the allegations contained in the libel. Under these impressions, my advice would be not to prosecute the appeal.

I have the honor, &c., &c.

To the SECRETARY OF STATE.
P. S. The papers are returned.

C. A. RODNEY.

APRIL 12, 1810.

SIR: In answer to the question proposed by you, "Is the President authorized by law to appoint general officers to the militia of the Territorial Governments?" permit me to state: That the ordinance of the old Congress, of the 13th July, 1787," for the government of the Territory of the United States northwest of the river Ohio," declares "the Governor for the time being shall be commander-in-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress." By an act of Congress under the present constitution of the United States, passed on the 7th August, 1789, entitled "An act to provide for the government of the Territory northwest of the river Ohio," it is provided that "the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint, all officers which by the said ordinance [of 1787] were to have been appointed by the United States in Congress assembled; and all officers so appointed shall be commissioned by him," &c. The act of April 7, 1798, erects the Mississippi Territory (to which the papers transmitted specially apply) into a Territorial Government of the first grade, in all respects similar to that of the Territory northwest of the river Ohio, under the ordinance of 1787, with the exception of the last article contained in that ordinance. The act of May 10, 1800, gives to the Mississippi Territory a government of the second grade established by the ordinance of 1787, and provides for the organization of a General Assembly therein. The General Assembly, by the ordinance of 1787, possesses he "authority to make laws in all cases for the good government of the district," &c. Possessing this authority, the General Assembly of the Mississippi Territory have passed an act entitled "An act to organize the militia," which provides that "the whole militia of the Territory shall Form one brigade, and be officered as follows: one brigadier general, with one brigade inspector," &c.

From this view of the subject, I can see no reason to doubt the power of the President to nominate to the Senate a suitable person for the office of brigadier general, thus created by law. It has been done, I understand, in more instances than one. The principle is clearly established by the plain language of the statutes cited, and is supported by precedent. C. A. RODNEY.

To the SECRETARY OF WAR.

MARCH 16, 1811. SIR: You have requested my opinion on the construction of the thirtyfifth article for the government of the army of the United States.

At first sight, there would seem to be an apparent contradiction between the provisions contained in this article and some which are subsequent: I allude more particularly to the sixty-seventh and seventy-fifth. On attentive consideration, however, they may be reconciled. This should always be done where it can be accomplished. It is the true rule to be followed in the sound exposition of statutes.

The thirty fifth article is intended for the benefit of inferior officers and soldiers. It gives them the privilege of complaining to the commanding officer of a regiment when wronged or aggrieved, who is required to summon a regimental court-martial on the case. This latter provision is imperative and compulsory. It is not a matter of favor or discretion, but of right, and is strictly ex debito justitia. It constitutes, in fact, a special court of inquiry on the subject, and affords a summary remedy to the party supposed to be injured. The only authority, however, given to this court is to decide on the justice or injustice of the complaint. By the subsequent articles, they have no authority to punish any officer against whom a complaint may be exhibited or preferred, though they may think it well founded. If further redress be proper, a general court-martial must be called. If the regimental court-martial be of opinion that the complaint is not founded in fact, the complainant may appeal to a general court-martial, but subject to this provision: that, if they consider the complaint groundless, they may punish, at their discretion, the party complaining..

This article, which is literally transcribed from the old articles of war, was originally taken from the British martial code. This code, like our own, does not subject officers to punishment by a regimental court-martial. On recurring to their best writers on this subject, I find them laying down the rule agreeably to the opinion I have expressed.

Mr. Tytler, in his accurate essay on military law, speaking of a similar provision in their martial code, says: "It is material, however, to observe, that, as no commissioned officer is properly amenable to the judgment of sentence of a regimental court-martial, the court, on such complaint and inquiry, can only pronounce their opinion whether the complaint is well or ill founded. If they declare the latter, the complainant must either acquiesce in that opinion, or, if he thinks himself aggrieved, follow the mode of appeal to a general court-martial above prescribed. If the regi mental court declare the complaint to be well founded, the complainant may, on that authority, request a general court-martial to take cognizance of the injury, and bring the offender to proper punishment."

Mr. McArthur, in a note on the same point, uses correspondent language: "It is proper to note, that a regimental court-martial cannot adjudge a commissioned officer to any punishment, but only, like a court of inquiry, the members give their opinion whether the charge be well or ill founded. If the charge be adjudged unfounded, the accuser may still, on the grounds of thinking himself aggrieved or wronged, appeal to a general court-martial; and if, on the contrary, the charge be adjudged well founded, the officer accused may appeal to a general court-martial."

The same doctrine is maintained in a valuable treatise, which does credit to an American officer-Major Macomb.

With these lights to direct me, I feel no hesitation in saying, that when inferior officers or soldiers who think themselves wronged complain to the commanding officer of a regiment, he ought to summon a regimental court-martial, to inquire into the truth or falsehood of the complaint, and decide thereon. But, as their authority extends no further than a court of inquiry, the rules and practice of such courts should in general govern their proceedings; for the regimental court-martial in this instance differs only in a few features from the ordinary courts of inquiry. Should the complaint be considered as well founded, and warrant a charge under any of the articles of war, a general court-martial may be ordered, who will have jurisdiction of the whole case, and may punish the offence. The officers may, at the proper season, be arrested; but, in the present stage, I apprehend an arrest would be irregular and premature.

Yours, very respectfully,

C. A. RODNEY.

Hon. P. HAMILTON.

[ocr errors][merged small][ocr errors]

OPINIONS

OF

WILLIAM PINKNEY, OF MARYLAND.

APPOINTED DECEMBER 11, 1811.

ANNAPOLIS, July 13, 1811.

1. I can perceive no inconsistency whatever between the words of the act of Congress of January, 1809, and the articles of enlistment quoted in the foregoing opinion.

The act requires that the engagement shall be for a period which it defines, and the engagement is for that period.

The objection that the enlistment should not have been made to commence at the time "when the ship should last weigh anchor for sea," appears to me to have nothing in it. The act of Congress does not prescribe the time when the engagement shall commence; it leaves that to the discretion of the Executive Government, to be exercised with a view to the nature and benefit of the service intended for the ship.

It is of no consequence that the men were in fact employed before the ship set out on her cruise, and that they have thus already served more than two years. If that consideration be of any account, it cannot go to affect the regularity of the enlistment for two years from the last weighing of the ship's anchor. It can only tend to show that it was unlawful for the Navy Department to employ the same men in the service of the ship before the term of their regular enlistment, as fired by the articles, commenced;-a conclusion which might be admitted, without injury to the right of the commander of the "Constitution" to keep the men in question until the expiration of the two years defined in the articles; but I do not think that even that conclusion would be just. The President was authorized to prepare the ship for a cruise or station on our coasts, &c. It can scarcely be doubted that, if the Navy Department had ordered the preparatory service to be performed by one set of persons, it might then have enlisted another set for two years more, for the performance of the principal service, to which the other was preliminary. But if it could do this with two different sets of persons, why not with one-provided that the enlistment for the principal service was limited, as the law prescribed, to two years?

2. If there is no room for doubt upon the letter of the law, there is still less upon the spirit. The enlistments were expressly directed by the act with a view to a specified actual service in which the ships were to be employed; and, of course, that commencement of the enlistments, which was also the commencement of the service intended for the ships, was clearly the most natural, and the most consonant to the intention of the statute.

3. I am of opinion that, even if the true construction of the act of Con

« SebelumnyaLanjutkan »