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the judge advocate, than it could be by any other hand not present at the trial. How far Captain Warrington may have been totally ignorant of the peace that had been concluded; how far the news may have reached him, if at all, in the shape of loose rumor merely; the length of time that he had been from port, with the general public belief, or otherwise, of such an event being probable or near at hand, when he sailed; the course and incidents of his cruise, so far as they could tend to convey to him the knowledge in question; the appearance and whole conduct of the Nauti lus when the Peacock fell in with her, with how far there may have been any indications in the one or the other leading to the suspicion of stratagem or deceit; the precise conduct of Captain Warrington before he opened his fire; what was due to correct naval usage in the relative situation of the two vessels-the commander of the one knowing positively the fact of peace, the other commander ignorant or doubtful of its existence, and uniting to that humanity, which he is accused of wanting, a high state of vigilance and discipline, which it was his duty and habit to maintain :these will probably form some of the leading heads of inquiry, to the elucidation of which the testimony of the witnesses will be directed. Special interrogatories may from time to time be interposed, as the course of the examination may suggest, and the presumed knowledge of the witnesses, collected from the tenor of their own narrations, render pertinent and necessary. The inquiry will couple itself with the honor of the naval flag of the United States, so little apt to be sullied in any way, no less than with that of the distinguished naval officer; and will no doubt be conducted by the court with as scrupulous a reference to these, as to the remonstrance and complaint sent forward by the British Government.
I think it will be proper that Captain Warrington should be furnished with a copy of the depositions taken under a commission on board the Nautilus, in Batavia roads, as well as with a copy of the British minister's notes to the Secretary of State. It will be seen that the two exhibit the charge against him under some differences as to facts.
In pursuance of the request contained in the minister's note of the 10th of May, and that the court of inquiry may proceed to the investigation with every attainable light, it will, I think, be proper to lay before it also the depositions taken in Batavia roads.
I have thus offered a few such remarks connected with the subject of your letter as have appeared to me appropriate or practicable, and shall feel happy if they be viewed as in any degree serviceable.
With great respect, I have the honor to be, your most obedient servant, RICHARD RUSH, Attorney General.
To the SECRETARY OF THE NAVY.
JULY 23, 1816.
I think it would be by all means proper to order a prosecution against. Taylor. It is clear that this may be done in pursuance of the 8th section. of the act of Congress of April 30, 1790, (vol. 1, page 100,) which allows the trial, in cases like the present, to be either in the district where the offender may first be brought, or in that where he may be apprehended.
I am also disposed to think that it would be a judicious measure to try Taylor first, provided it can be done without too much delay to the trial
of the offenders already under trial or in custody in Virginia. To this effect, the district attorney of Delaware should be written to; and, if the circuit court there will meet as soon as, or at no distant day after, the time fixed for the meeting of that in Virginia, it would be well to order the evidence deposited in Virginia to be transmitted to the department, that it may be sent on to Delaware.
It would be prudent to ascertain, in the first instance, from the attorney of the latter district, if Taylor is really to be found there.
In any event, it will be proper that the collector of Havre-de-Grace should be written to, and directed to preserve, as intimated by Mr. Wirt, the documents that have fallen into his hands, so as to be able to obey a summons, from whatever quarter, to attend court at a future day. The alleged illegal voyage having had its inception at Baltimore, I think it also proper that the United States attorney in that city should be instructed to institute every practicable inquiry on his part, with a view to the detection of offenders.
In regard to the instructions to be sent out to Mr. Mitchell, the President's intimation seems sufficiently explicit.
WASHINGTON, July 27, 1816.
Upon the letter of the collector of Baltimore, dated the 24th of this month, submitted to me yesterday, I have to state:
That I am aware of no law of the United States that can prevent a merchant or ship-owner selling his vessel and cargo (should the latter even consist of warlike stores) to a citizen or inhabitant of Buenos Ayres, or of any part of South America. Nor will it, do I think, make any difference whether such sale be made directly in a port of the United States, with immediate transfer and possession thereupon; or under a contract entered into here, with delivery to take place in a port of South America.
If vessels be fitted out, furnished, or armed, within the waters of the United States, and there be sufficient grounds for believing that it is done with intent to employ them in the service of any foreign prince or state, to cruise or commit hostilities upon the subjects or property of another foreign prince or state with whom the United States are at peace, it would be unlawful under the act of Congress.
If the English vessel alluded to in the collector's letter be seeking an armament with the latter purpose, it will consequently be unlawful. But I know of no law to prohibit her taking in arms or military stores in the way of trade, or for necessary self-defence.
RICHARD RUSH, Attorney General.
AUGUST 16, 1816.
I do not think that there is any thing in the act of April 18, 1814, limiting the right of the President to increase the pay of the officers and men belonging to the navy to the close of the war with Great Britain, which then existed; but undoubtedly it is in his discretion to do so. I think, however, that no increase ought to take place in their pay since the war, without a new and particular authority from the President.
RICHARD RUSH, Attorney General.
To the SECRETARY OF THE NAVY.
WASHINGTON, September 17, 1816.
SIR: In answer to your note of yesterday's date, I beg leave to state, that I think an indictment at law would be the fittest course in the case mentioned by Captain Cassin. It may be that a court-martial would have cognizance of it; but this does not oust that of the ordinary tribunals, which I incline to prefer in this instance.
Whether the case should be brought before a court of the United States or not, I am not able at this moment to say. It might depend upon whether Virginia has ceded her jurisdiction to the General Government over the place where it is alleged the offence was committed, and I have not the laws of that State at hand. The district attorney of Virginia would give correct advice in this particular. If no exclusive jurisdiction has been ceded to the United States, the case will be brought before the proper State court.
If an indictment be laid in a court of the United States, the witness alluded to in your note may be taken from this place under a subpoena, to be issued in proper time, should it become necessary.
I have the honor to be, with great respect, your obedient servant,
To the SECRETARY OF THE NAVY.
WASHINGTON, October 1, 1816.
The Attorney General, having seen the representation addressed to the Minister of France by Mr. Dufort, president of the royal court at Bordeaux, respecting the conduct of a person by the name of Antoine, charged with having shipped certain effects of value to the United States, with a view to defraud his creditors in France, as well as the letter from the Minister of France to the Secretary of State, dated the 13th of last month, (both of which the Secretary of State has done him the honor to refer to him,) has great pleasure in stating, for the information of those in whose behalf the minister is so naturally desirous to obtain justice, that the laws will happily afford every facility to that end.
The courts of the United States in every State are at all times open to the subjects of a foreign power in friendly relations with them; and, on this occasion, the Attorney General is happy to add, that those of his Most Christian Majesty will be entitled to claim the benefit of every legal remedy in as ample a manner as could be enforced by any citizen of the United States. The more especially will such remedies be extended in a case of fraud, which the law is ever sedulous to defeat.
In whatever town or place of the United States the effects thus sent off by Antoine can be found, they will be liable to process either of attach ment, or some other-rendering them or their amount ultimately liable to the just claims of his creditors. The latter, whether residing at Bordeaux or elsewhere in France, should transmit to the United States evidence of the nature and amount of their debts, under the best forms of authentication prescribed by the laws of France. It would, perhaps, be convenient if, on their arrival in this country, they were lodged in the hands of some agent or attorney, who might immediately act whenever the effects themselves, or those to whose hands they have been fraudulently shipped, are discovered.
The Attorney General forbears, for the present, to add any thing further, without being apprized of more particulars of the case itself, or knowing in which of the States it may become necessary to apply for process; each State having its own judicial usages, which govern in some degree the courts of the United States. All, however, concur in abhorring fraud; and the Attorney General indulges the conviction that every relief it is practicable to obtain through the instrumentality of courts of justice, will be promptly and effectually accorded to the French claimants in the present instance, as soon as proofs of their debts are exhibited.
WASHINGTON, November 19, 1816.
SIR: I have just now had the honor to receive your note of this date. In compliance with the wish expressed for an early answer, I have to state that my note of the 17th of September last, indicating a subpœna as the process for James Daily, does not appear to have been written under a knowledge that he was in the custody of the jailer on a criminal charge here. If he be at large, as now appears to be the fact, I should suppose that a subpoena would answer. But whatever process be necessary must issue from the court in Virginia; and the case now being under the official management of the attorney of the United States for that district, I should respectfully presume that it will be with him to direct it, at his proper discretion. I have no authorities to set before that gentleman. The prosecution being now exclusively in his hands, he will doubtless point out the regular steps to be pursued. The intimation in my note of the 17th of September was rather a suggestion, as the tenor of the note holds up, than any positive opinion, intended to control the more deliberate examination of others at a riper stage of the prosecution.
With great respect, I have the honor to be, your obedient servant, RICHARD RUSH.
To the SECRETARY OF THE NAVY.
NOVEMBER 27, 1816.
There is no statute of Congress, that I am aware of, that reaches the case of cutting timber from the public lands as a specific offence. Nor will the nature of the criminal code authorize a prosecution as for a robbery.
Yet, if the facts be as stated in the within letter, it is such an outrage upon the United States in their rights of property, as will lay the foundation of an action of trespass, in which it can scarcely be doubted that just damages would be enforced against the delinquents. The trespass, however, being local, the attorney of the Government in that quarter, who would conduct the suit, should also, perhaps, be asked to furnish his advice upon the occasion. If the hint of this officer's backwardness be true, it would seem to raise a necessity for an immediate substitute, as the prompt instrumentality of an attorney for the public will be indispensable towards upholding the authority of the laws. The facts are important; the communication anonymous. Names are mentioned. Are any of them known? What is stated may well awaken attention, coming, as it does,
from an intelligent hand, and dealing so in particulars. But can the Government venture upon any positive step, without intermediate inquiry and further corroboration?
As to the Indians alleged to have been killed by Fisher and his party, the laws of the United States which protect them in these cases (if within their own territory) would seem to render nothing further necessary than the proper testimony, to warrant an indictment for murder. Might the letter, or an extract from it, be transmitted to the attorney of the United States?
RICHMOND, November 28, 1816.
DEAR SIR: I learn from a correspondence with the Secretary of the Navy, that the case of Dentzel, a sergeant of marines, accused of larceny at Gosport in this State, has been before you. In conformity with your opinion that an indictment should be preferred against him, I have had Daily, the witness, brought on; and on examining him, and looking further into the posture of the United States jurisdiction as to Gosport, I am extremely doubtful whether the prosecution can be maintained. The Chief Justice, to whom I have submitted the evidence of Daily and expressed my doubts, has the same doubts. And it is on his suggestion that I trouble you with this communication, with the view of calling your at tention more particularly to the case, and learning your final decision, by which I shall take pleasure in governing myself. The grounds of doubt are these 1st. The money stolen was bank-notes-which the English courts, and our general court in conformity with them, have decided not to be personal goods, and the subject of larceny, till made so by a special act of Parliament in England, and until made so, as to our Virginia banks, by a special act of Assembly: whereas the act of Congress (vol. 1, 105-6) makes the stealing of personal goods, only, larceny; which it is thought does not embrace the stealing of bank-notes.
2d. The act of Assembly which cedes Gosport reserves the State jurisdiction for the service of process; while the act of Congress before mentioned defines larceny to consist in stealing the personal goods of another, from some place within the sole exclusive jurisdiction of the United States, which is not the case with Gosport.
Under these doubts, would it not be better to proceed against Dentzel by a court-martial? The witness Daily is detained till I shall learn your determination.
Most respectfully, your obedient servant,
Hon. RICHARD RUSH,
Attorney General U. S., City of Washington.
The enclosed letter from Mr. Wirt to R. Rush is, by the latter, most respectfully submitted to the Secretary of the Navy.
Mr. Wirt's views should, I think, govern in this case, as to the legal steps to be pursued, depending, as it now appears to do, mainly upon the Virginia laws. I yield my first opinion to his better information.