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I see no cause to change it. Dr. Thornton's answer to Mr. Sullivan is, I think, a very proper one; and his exposition of the law a very sound one. If the former defective patent had been a nullity ab initio, I should concur with Mr. Sullivan; but so far from having been a nullity, I understand from the facts that it has completely protected the invention of the patentees for half the legal term; and having derived this practical benefit from it, they ought not, I think, to be permitted by a legal fiction to regard it as a nullity. The power to issue a patent for a less term than fourteen years has, I also think, been placed on its true ground by Doctor Thornton-the restriction is on the maximum only, not on the minimum. [WM. WIRT.]
To the SECRETARY OF STATE.
ATTORNEY GENERAL'S OFFICE,
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 any thing, 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 6th 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 celebrated alien law, that it gave the President power to arrest; "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.)
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 6th amendment to the constitution of the United States and the 33d 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. Although, even in this case, the power of the President to put forth his proclamation is entirely matter of inference from his constitutional power to "take care that the laws be faithfully executed;" there being no express statutory provision to authorize such proclamation.
I shall await your instructions on this subject;
To the PRESIDENT OF THE UNITED STATES.
OFFICE OF THE ATTORNEY General,
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 any thing 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
To the PRESIDENT OF THE UNITED STATES.
OFFICE OF THE ATTORNEY GENERAL,
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 Govern
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.
OFFICE OF THE ATTORNEY GENERAL,
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 dif ferent 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 constitution, the President is the national and proper depositary of the final appellate power, in all judicial matters touching the police of the army; but let us not claim this power for him, unless it has been communicated to him by some specific grant from Congress, the fountain of all law under the constitution. By the 14th section of the act of the 16th March, 1802, fixing the military peace establishment of the United States, it is provided that "the officers, non-commissioned officers, musicians, and privates of the said corps shall be governed by the rules and articles of war which have been established by the United States in Congress assembled, or by such rules and articles as may be hereafter established: provided, nevertheless, that the sentence of general courts-martial, extending to the loss of life, the dismission of a commissioned officer, or which shall respect a general officer, shall, with the whole proceedings of such cases, respectively, be laid before the President of the United States, who is hereby authorized to direct the same to be carried into execution, or otherwise, as he shall judge proper." The court, in this case, was a general court-martial; and its sentence one which extended to the dismission of a commissioned officer: it could not, therefore, according to this law, be carried into effect until the sentence, with the whole proceedings which led to it, should be laid before the President; who was authorized by the law either to direct it to be carried into execution, or otherwise, as he should judge proper. To show the value of this appellate power, according to the spirit of this nation, from the period of its earliest struggles for liberty, it is not unworthy of remark, that, by the 18th section of the rules and articles of war, established by the continental Congress, it was provided that "the continental general commanding in either of the American States for the time being, shall have full power of appointing general courts-martial to be held, and of pardoning and mitigating any of the punishments ordered to be inflicted for any of the offences mentioned in the aforementioned rules and articles for the better government of the troops, except the punishment of offenders under the sentence of death by a general court-martial, which he may order to be suspended until the pleasure of Congress can be known; which suspension, with the proceedings of the court-martial, he shall immediately transmit to Congress for their determination." (1 Graydon's Digest, app. 156–7.) On the 27th May, 1777, the whole appellate power was given to the general or commander-in-chief, id. ib., confirmed by an order of 18th June, 1777. Some years after the close of the revolutionary war, (to wit, on the 31st May, 1786,) it was resolved by Congress, among other things, that
"no sentence of a general court-martial, in time of peace, extending to the loss of life, the dismission of a commissioned officer, or which shall, either in time of peace or war, respect a general officer, shall be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before Congress, for their confirmation or disapproval, and their orders in the same." (1 Graydon, app. 158-'9.) The question may as well be asked here as elsewhere, whether the appellate power of the continental Congress, in the resolution last quoted, was limited to the confirmation or disapproval of the sentence of the court-martial on which they were called to act? Had they not the power, not merely of disapproving that sentence, but of ordering a new trial? If they were so limited, why did not the resolution stop at giving them the power to confirm or disapprove? Why the additional words, after the disapproval, "and their orders in the same ?" These words obviously mean something: and what they do mean, we shall discover by turning our attention for a moment to the prototype from which we have chiefly drawn all our laws, both civil and military, and from which our then recent connexion with Great Britain rendered it most natural that we should draw them.
The mutiny act of England, which annually passed, and which is the sole foundation and rule of courts-martial in that country, establishes a connexion between the martial and civil courts of the kingdom, and authorizes an appeal from the former to the latter. The 79th section of the mutiny act authorizes an appeal froin the sentence of a court-martial to the Courts of King's Bench and Common Pleas in England and Ireland, and the Court of Session in Scotland. (Tytler's Essay on Military Law, &c., p. 167-'8: Edinburgh edition, 1800.) The causes for which the sentence of a court-martial may be brought under review of a superior judicature, are the same which in the civil courts in England authorize either the granting of a new trial, or an arrest of judgment; that is to say, if the sentence or verdict shall have been manifestly without or contrary to evidence, &c., &c. But in all such cases, as the presumption is strongly in favor of the judgment, the superior court will not entertain the appeal, or authorize any review of the proceedings, unless on the most pregnant or positive grounds for supposing that the merits have not been fairly discussed, and that the decision is not agreeable to the justice and truth of the case." (Tytler, 171-'2.)
It appears, therefore, that in England the power to award a new trial does exist, by an appeal from the courts-martial to the civil courts of the kingdom. But there is something still more strong in this view of the subject: which is, that this appeal lies to the civil courts of the kingdom; and this power of awarding a new trial exists, after the king shall have approved the sentence of the court-martial; for never until then is the sentence complete and final, and never, therefore, until then, can there be an appeal; since an appeal lies from a final sentence only.
It cannot be doubted that our Congress were in full possession, by painful experience, of the mutiny act, and of the whole laws of the British army, at the period of our Revolution; that they understood thoroughly, not merely the legal limits of the power of a standing army, in its operation upon our citizens, but the laws which controlled the internal government of the army itself. To say nothing of the painful lessons of experience, which would drive them to consider and to understand the pro