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my opinion; and that, for the reasons which have been already so fully assigned.
TO EDWARD S. DUNCAN, Esq.,
ATTORNEY GENERAL'S OFFICE, July 4, 1818.
SIR An application has been made by the Governor of Georgia to the President of the United States, to direct a trial of Captain Wright, charged. with the murder of certain friendly Indians, before the courts of the United States. Wright was at the head of a company of militia, acting under the orders of the Governor of Georgia, and not in the service of the United States, when he made the attack in question on the Indian village. He alleges that he had the Governor's express orders for attacking and destroying this particular village, which was confessedly friendly. The Governor, on the other hand, denies this assertion, and contends that his orders pointed out other Indians, who were confessedly hostile. If the courts of the United States have jurisdiction over this case, it is presumed they must take it under an act of the 30th March, 1802, entitled “ An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers." (3d volume Laws United States, page 460, of the new edition.) The 6th section of this act, you will observe, makes the killing of a friendly Indian (within their own territory) murder; and the 15th section gives the United States courts jurisdiction over all offences committed against this act. The same section also authorizes the President of the United States to issue a commission to any one or more judges of the Supreme Court of the United States, and the judge of the district within which such offender may be apprehended, to try the offence when capital; a provision which it is supposed was intended to ensure a speedy trial, where the next session of the regular court was distant.
The President is disposed to exercise the authority given him by this law, if it applies to the case so as to found the jurisdiction of the courts of the United States, and if any two judges of the Supreme Court will attend. The decision to proceed civilly, under this law, (in preference to a court-martial of the State of Georgia,) was taken before the President left Washington. But in a conference, since that, with the Secretary of State, he suggests the two doubts as to the jurisdiction and the probability of procuring the attendance of any two judges of the Supreme Court.
In relation to the jurisdiction of the court, he is under the impression, that the law did not contemplate a military movement, and that the moment Wright produces his commission the court will disclaim jurisdiction; that the law meant to punish private and individual assassination only; and that Wright's offence (if it be one) having been committed under a commission, at the head of an armed body, regularly armed and marched for war, is a military offence only, and can be tried by no other tribunal than a court-martial; that a civil tribunal can neither examine his commission nor his orders, so as to try the fact whether he has or has not acted in obedience to them; but that the commission, the orders, and the execution of the orders, are purely military affairs, with which a civil tribunal has nothing to do. On the other hand, it is said that the case of Wright is within the 6th section of the law; and that his commission, his orders,
and the execution, are matters of defence, as completely examinable before the civil court, as any other matter of defence; that neither his commission nor his orders afford him any more protection against his responsibility for this murder, than they would against the murder of one of our citizens, on whom he should direct his company to fire; and that even admitting his commission and his orders to be as he alleges, they neither oust the jurisdiction of the court, nor constitute a justification of the act.
The doubt whether any two judges of the Supreme Court can be prevailed upon to attend, depends in a great degree on yourself. The court, under the commission, cannot be held earlier than the 1st of October: it will be held at Milledgeville, in Georgia; and you and Judge Johnson are the judges in view, as being most convenient to that place.
The Secretary of State, being extremely engaged with other affairs, has requested me to write to you-first, to inquire (if it be not improper, as we hope it is not) whether you think the courts of the United States have jurisdiction of the offence; and, secondly, whether it will be in your power to attend, at the time and place appointed, to execute the commission in conjunction with Judge Johnson and the judge of the district. Be pleased to favor us with an answer at your earliest convenience. I have the honor to be, sir, with respect, &c.,
TO CHIEF JUSTICE MARSHALL.
ATTORNEY GENERAL'S OFFICE, July 8, 1818.
SIR: I have examined the two questions propounded by the Commissioner of Public Buildings, which you submitted to me, and have now the honor to furnish the answers.
These questions are-1st. Whether the wharves proposed to be built by the owners of water-lots on the Potomac and Eastern Branch shall follow the direction of the present streets of the city, or start at right-angles from Water street; and, 2d. Whether the proprietors of those water lots have a right to erect buildings beyond the line of Water street.
1. According to the documents submitted for my information, there was nothing in the terms of their purchases which authorized the owners of those lots to build wharves at all. They bought "with a water privilege" merely, which privilege was not defined. And if there was no general law then in force, which authorized the purchasers of water-lots to build wharves, the mere purchase of a water privilege does not necessarily include the right of wharving. It gives the free use and enjoyment of the water, as it lies on its natural bed; but it gives no right to vary that bed, by the erection of wharves, or any other obstruction whatever.
The only legislative act on this subject which has been brought to my notice, is the act of cession from the State of Maryland to the United States, which passed on the 19th December, 1791. By the 12th section of which, it is provided "that the commissioners for the time being, or any two of them, shall, from time to time, until Congress shall exercise the jurisdiction and government within the said territory, have power to license the building of wharves in the waters of the Potomac and the Eastern Branch, adjoining the said city, of the materials, in the manner, and of the extent they may judge durable, convenient, and agreeing with gen
eral order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in the waters without license as aforesaid." Since Congress assumed jurisdiction and government within the territory so ceded, this act has been repeatedly recognised, and the powers conferred by it on the commissioners several times transferred to others. Thus, on the 1st of May, 1802, an act was passed" to abolish the board of commissioners in the city of Washington, and for other purposes;" by the 2d section of which act, it was provided that the affairs of the city, which had theretofore been under the care and superintendence of the said commissioners, should thereafter be under the direction of a superintendent, to be appointed by, and to be under the control of, the President. And the superintendent was thereby expressly vested with all the powers with which the said commissioners had been vested by any act of Congress, or any act of the General Assembly of Maryland. Again by an act of Congress of April 29, 1816, entitled "An act making an appropriation for enclosing and improving the public square near the Capitol, and to abolish," &c., &c., the office of superintendent was abolished, and all his powers devolved on a single commissioner, to be appointed by the President, by and with the consent of the Senate.
Thus the commissioner in office under the last mentioned act is now vested with all the powers which belonged to the superintendent, and, before him, to the three commissioners at first in office.
What these powers are in relation to wharves, we have seen from the quotation before made from the law of Maryland. Before the abolition of the three commissioners, (to wit, on the 20th July, 1795,) they issued a general order, purporting to be founded on that law, by which a general permission was given to the proprietors of water-lots to wharf and build as far out into the river Potomac and the Eastern Branch as they think convenient and proper, not injuring or interrupting the channels or navi gation of the said waters; leaving a space, wherever the general plan or the streets in the city require it, of equal breadth with those streets, which (streets,) if made by an individual holding the adjacent property, shall be subject to his separate occupation and use until the public shall reimburse the expense of making such street; and where no street or streets intersect said wharf, to leave a space of sixty feet for a street at the termination of every three hundred feet of made ground. The buildings on said wharves, or made ground, to be subject to the general regulations for buildings in the city of Washington, as declared by the President. Wharves to be built of such materials as the proprietors may elect.
I doubt the regularity of this order, on the ground of its being a general one. The law of Maryland clearly contemplated specific and single licenses to each individual separately, as applications might be made. In support of which construction it will be observed, that, in the same section of the law, the language is changed to "regulation" wherever a general order is contemplated;-for example, in relation to the discharge of ballast, the landing of cargoes, &c. The policy of the law in relation to wharves was probably to enable the commissioners to avoid, in subsequent licenses, any inconvenience which might have been observed to arise from former ones, and thus to profit by their own experience as they went along. But admitting that the advantage of a general system in the construction of wharves is an object of paramount importance, and that the general order
or license which has been quoted was a correct exercise of power on the part of the commissioners, the order itself (which has never been revoked or altered, so far as I can learn, and which, therefore, gives the law in this case) answers both questions; for, first, the order clearly contemplates the continuance of the present streets in their present direction over the made ground of the wharves-an effect which cannot be produced in any other way than by following the present direction of the streets in giving form to the wharves. In looking at the plan of the city, or at the diagram accompanying the commissioners' statement, it will be seen that a wharf, standing at right-angles from Water street to the channel of the river, will inevitably cross the present direction of the streets, and therefore violate that provision in the order of the commissioners which requires the builders of the wharves" to leave spaces, wherever the general plan of the streets in the city requires it, of equal breadth of those streets;" language which I can understand in no other way than as contemplating the projection of the present streets in the same direction, and of the same width, over the artificial ground constituting the wharves.
Again the law of Maryland itself, from which the commissioners derived their power, imposed one specific restriction on its exercise; which was, that no license should be granted to one to build a wharf before the lands of another. But, in casting the eye on the commissioners' diagram, it will be seen that a wharf, projected at right-angles from Water street to the channel, will not only cross the course of the streets, but pass over so as to lie "before the lands of another," in direct violation of the act.
My answer to the first question, therefore, is: that, so long as the law of Maryland, and the order of the commissioners under it, remain unrepealed and unmodified, the wharves must follow the present direction of the streets, and cannot be projected at right-angles from Water street to the channel.
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 legislative 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.
ATTORNEY GENERAL'S OFFICE,
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 either 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 act 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.
OFFICE OF THE ATTORNEY GENERAL,
SIR: I have reconsidered, very deliberately, the opinion which I had the honor to give you formerly, on the construction of the patent law; and