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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 miti gate 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 courtmartial 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,) leemed it indispensable that Jephson should retire; permitting him to eceive the regulated price for his commission from the officer who should be appointed to succeed him. "This," says McArthur, " on a supericial view, appears to be an alteration of the sentence." But he defends t 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.,



OFFICE OF THE Attorney General,

January 5, 1820.

SIR: It is only within a few days back that I have been put in possession of copies of all the documents that can be found relative to the title to the island in Delaware river, called the Peapatch. 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 be fore 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 Gales 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 Peapatch; 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 ra dius (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 Peapatch being an island in the river to the north of that point, it seems clear to me that it is in

cluded 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.,



January 12, 1820.

SIR: Doctor Thornton's communication of the 7th instant, which has just been submitted for my opinion, presents the following case and questions:

Mr. Duplat, an alien, who has resided within the United States for two years, applies for a patent for a discovery in the useful arts, of which he is the original inventor, but which he put into extensive operation in France before he came to this country. The act of the 17th April, 1800, which extends the privilege of obtaining patents to aliens who have had a residence of two years among us, provides that every person petitioning for a patent shall make oath, before such patent shall be granted, that such invention hath not, to the best of his knowledge, been known or used, either in this or any foreign country; and it provides, moreover, that any patent which shall be obtained for any invention, which it shall afterwards appear had been known or used previous to such application for a patent, should be utterly void. From the facts already stated, Mr. Duplat cannot take the oath required by this law; and the question which I understand to be submitted to me, is, whether the oath required by this law can be dispensed with? or whether it can be so modified as to let in the present applicant, who is confessedly the original discoverer of the invention for which he seeks a patent?

My opinion is, that the law is imperative; and that no patent can issue in the case until Mr. Duplat shall have taken the oath in the terms in which it is prescribed by Congress.

Whether Congress, in prescribing the oath in these terms, have not gone beyond their intention; whether the law ought not to be amended in this particular; and how it ought to be amended; are questions which, I presume, were not intended to be referred to me, since my province is confined to answering questions of law merely, on the laws as they stand. I have the honor to be, sir, very respectfully, your obedient servant, WM. WIRT.


February 2, 1820.

SIR: The slaves to which Governor Clarke alludes, having been imported prior to the act of the 3d March, 1819, do not fall within the sphere of the powers and duties assigned to the President by the 1st and 2d sections of this act. These slaves appear to have been introduced in the fall

of 1817, or in the following winter; at which time, by the laws of the United States, they were subject to be disposed of by the laws of the sev eral States. If they were not proceeded against under the State laws, I understand that proceedings may now be had against them under the 4th section of the act of Congress of March 3, 1819, which provides "that when information shall be lodged with the attorney for the district of any State or Territory, that any negro, &c., has been imported therein, contrary to the provisions of the acts in such case made and provided, it shall be the duty of the attorney forthwith to commence a prosecution by information; and process will issue against the person charged with holding such negro, &c.; and if it shall be ascertained by the verdict of a jury that such negro, &c., have been brought in contrary to the true intent and meaning of the acts, &c., then the court shall direct the marshal of the said district to take the said negroes, &c., into his custody for safekeeping, subject to the orders of the President, &c." I understand this section of the act of 1819 as applying to all negroes theretofore brought in against the provisions of any of the acts of Congress on the subject, who had not been disposed of previously by the State laws; and, conse quently, that if these negroes are in this predicament, and are now in any State or Territory of the United States, proceedings may still be had against them under that section; but that the President has nothing to do with them until they shall, by the judgment of a court, be placed in the hands of the marshal, subject to the orders of the President; and that when so placed in the marshal's hands, the President may order them, if he pleases, to the coast of Africa, under the spirit of the act in which this 4th section is found.

I think, also, that it is due both to the Government and to General Mitchell that a prosecution should be instituted against him for the penalty given by the laws of the United States for the importation of slaves: such a prosecution will give him an opportunity of acquitting himself if innocent, and will inflict a just punishment on him if guilty.

With respect to the propriety of submitting this case to Congress, on their call for information as to the practices in evasion or violation of our slave laws, Governor Clarke's communication appears to me to come di rectly within the object of the call; and being derived from so respectable a source as the Governor of the State of Georgia, I cannot perceive with what propriety it can be withheld.

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



February 3, 1820.

SIR: The order of the House of Representatives of the United States, of the 28th January last, "that the petition of Joseph Wheaton, and the accompanying documents, together with the report of the Committee of Claims, of the 6th January instant, thereon, be referred to the Attorney General of the United States, and that he be requested to report his opinion thereupon to this House," was handed me by Major Wheaton (the

petitioner) this evening, together with the documents which are now returned.

The duties of the Attorney General's office are specified by our laws, and are confined to the following heads:

1. To prosecute and conduct all suits in the Supreme Court, in which the United States shall be concerned."

2. To give his advice and opinion upon questions of law, when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments."

3. "To discharge the duties of a commissioner of the sinking fund." The Attorney General is sworn to discharge the duties of his office according to law. To be instrumental in enlarging the sphere of his official duties beyond that which is prescribed by law, would, in my opinion, be a violation of this oath. Under this impression I have, with great care, perused all the documents which have been handed to me in this case, for the purpose of ascertaining whether the order with which I have been honored from the House of Representatives falls under either head of my official duties; and it appears to me that it does not. A reference to the law will show, I think, that this is indisputably clear.

I had the honor to intimate this impression in the case of Major Thomas, referred to me officially by the House of Representatives, in the session of 1818-19, in the hope that if it was thought advisable to connect the Attorney General with the House of Representatives in that character of legal counsellor which he holds by the existing law towards the President and heads of departments, a provision would be made by law for that pur


No such provision having been made, and believing, as I do, that in a Government purely of laws it would be incalculably dangerous to permit an officer to act, under color of his office, beyond the pale of the law, I trust I shall be excused from making any official report on the order with which the House has honored me. It is true that in this case I should have the sanction of the House for the measure; and it is not less true that my respect for the House impels me strongly to obey the order. The precedent, however, would not be the less dangerous, on account of the purity of motives in which it originated. The maxim is as old at least as republican Rome, that omnia mala exempla ex bonis orta sunt: on this ground I hope to be excused by the House of Representatives for declining their request. And I assure you, sir, that it gives me more pain to be thus obliged to decline it, than it would give me trouble to make the report; but in a conflict between my wishes and my sense of duty, there ought to be no question which I should obey. I may be wrong in my view of the subject. The order may be sanctioned by former precedents; but my predecessors in office have left nothing for my guidance, and I am constrained, therefore, to act on my own construction of the law as it stands.

I have the honor to be, sir, very respectfully, your obedient servant, WM. WIRT.


of the House of Representatives of the United States.

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