and the opinion of the court of appeals must be our guide. I have not before heard of this reversal; and it will be necessary that we have a copy of the reversing opinion, in order to have full and exact possession of its principles and limits: this the Comptroller will readily procure from the district attorney of the United States at Richmond; and until its arrival, it will be better, I think, to defer any instructions to Mr. Beeson. I have the honor, &c., &c., To the SECRETARY OF THE TREASURY. WM. WIRT. ATTORNEY GENERAL'S OFFICE, SIR: I cannot discover that the laws of the United States have invested the Secretary of the Treasury with any power to grant such a request as that of Mr. James Homer, of Boston; that is to say, to correct an alleged error in the judgment of a court of the United States, and to refund a sum stated to have been improperly paid in consequence of such alleged error. If Mr. Homer has sustained an injury in this instance, the only power that can redress him is the power of Congress. I have the honor, &c., &c., To the SECRETARY OF THE TREASURY. WM. WIRT. ATTORNEY GENERAL'S OFFICE, SIR: I have examined the petition of Thompson and Dickson, which you referred to me on yesterday, and which is now returned. The facts, if true as stated in the petition, present a proper case, in my opinion, for the exercise of your power of pardon. But that statement is entirely ex parte, and is not supported by any documents or proofs whatever; nor does a copy of the record, comprising the proceedings in the case, accompany the petition. Under these circumstances, I submit it, respectfully, whether it would not be the better course to suspend the proceedings at law until the facts can be inquired into, and to forward the petition to the district attorney of Virginia, with a request that he will report on the facts of the case therein set forth. The proper organ of communication on this case with the district attorney will be, I presume, that agent of the Treasury appointed by you under the act of the last session for the purpose" of directing and superintending all orders, suits, or proceedings, in law or equity, for the recovery of money, chattels, &c., in the name of the United States." The case presented by the petition being a revenue case, a full knowledge of which, as well as of the proceedings to be had in it, and the disposition to be finally made of it, is essential to the performance of the duties devolved on that office. I am, sir, &c., &c., To the PRESIDENT OF THE UNITED STATES. WM. WIRT. ATTORNEY GENERAL'S OFFICE, SIR: On the subject of William Pancoast's petition, referred to me on yesterday, it is sufficient to say that he calls on the President of the United States for his official interference in a matter of private and individual litigation. If Mr. Pancoast has been injured by the proceedings of which he com plains, the laws of the country afford him redress; nor is his alleged poverty any bar to this redress, because, if he has a real matter of grievance. the same laws authorize him to appear in formâ pauperis. His petition is returned. I am, &c., &c., To the PRESIDENT OF THE UNITED STATES. WM. WIRT. ATTORNEY GENERAL'S OFFICE, SIR: As the examination in the case of the Norbury had a double as pect-one which looked to the institution of criminal proceedings, an another which regarded the conduct it would be proper for you to pursu in relation to the collector-I can see no impropriety in the notice whic has been given by Mr Habersham to Mr. Bullock, (the collector,) as con municated by his letter of the 16th instant. Indeed, in the latter of th two aspects above mentioned, I think there was a peculiar propriety in and even in the other aspect, although it is not usual; the error, if it one, is on the side of justice. I am, sir, very respectfully, your obedient servant, To the PRESident of the UNITED STATES. WM. WIRT Office of the ATTORNEY General, SIR: I have examined, with the respect and attention to which i justly entitled, the letter of General Vives, the minister of his Cath Majesty, which you have done me the honor to submit for my off opinion; and now proceed to give you the result of this examination. The complaint is, that Mr. Villavaso, the Spanish vice-consul at Orleans, has been arrested and held to bail at the suit of Mr. Seré, of place, for an alleged injury to the property or commercial pursuits of the ter; and General Vives calls on the President of the United States to pend the proceeding in this case, on the ground that Mr. Villavaso, be a public functionary of his Catholic Majesty, is protected from arrest the law of nations, is not subject to the jurisdiction of our tribunals. can be made to answer for this alleged injury only to the sovereign whom he derives his commission. The President possesses no powers but those which he derives from constitution and laws of the United States; and these give him no aut ity to interfere in this case. It is not a criminal proceeding, in the name of the United States: if it were, the President might, if he thought it proper, arrest the proceeding by a nolle prosequi. But this is a civil suit, in the name of an individual, brought before the courts of our country, for the redress of a private commercial injury. Mr. Villavaso may plead to the jurisdiction of the court, and bring the question, if he chooses, before the supreme tribunal of the nation; and his plea, if it be well founded, will protect him against the suit. But the subject being a civil individual suit, of which the judiciary has possession, the President has no authority to interpose in the case, either by arresting the proceedings, by punishing the plaintiff, or even ordering a prosecution against him, unless the step which he has taken be in violation of some law of the United States. The only law which we have, that looks to the protection of foreign. functionaries against civil suits, is the act of Congress of the 30th April, 1790,"for the punishment of certain crimes against the United States;" the 25th and 26th sections of which are exact transcripts of the enacting clauses of the British statute of the 7th Anne, c. 10, entitled " An act for preserving the privileges of ambassadors and other public ministers of foreign princes and states." It will not be thought foreign to a question which involves the efficacy of our Government to protect its intercourse with foreign nations, to observe, that until the statute of Anne, to which I have just referred, the British Crown possessed no power to punish the violation of the person of an ambassador. The preamble of that statute recites the occasion of its enactment: it was, that "several turbulent and disorderly persons had, in a most outrageous manner, insulted the person of his excellency Andrew Artemononitz Mattireof, ambassador extraordinary of his Czarish Majesty, Emperor of Great Russia, her Majesty's good friend and ally, by arresting him and taking him by violence out of his coach in the public street, and detaining him in custody for several hours, in contempt of the protection granted by her Majesty, contrary to the law of nations," &c. The equel of the transaction we have from Blackstone's Commentaries, (vol. , p. 285.) The Czar insisted that the sheriff of Middlesex and his acomplices should be put to instant death; and was much surprised to reeive for answer, "that the Queen could inflict no punishment upon any, le meanest, of her subjects, unless warranted by the law of the land; and, 1erefore, she was persuaded that he would not insist on impossibilities." The sheriff and his accomplices were, it is true, tried and found guilty of e facts; but the question how far these facts were criminal, was reserved be argued before the judges, but was never determined, the Czar havig been appeased by the statute which was presented to him, under very umiliating circumstances, on the part of the Queen, with a repetition of e apology for her want of power as to the past, and a pledge of the act a law for the future; whereupon the offenders were, at his request, ischarged from all farther prosecution. This statute of Anne is the first id last which has been passed by the British Parliament, for the protecon of foreign functionaries. Our act of Congress is precisely commentrate with it; and the power which the British monarchy wanted to so te a period of its history, was conferred on our Government in the first ear of its formation. If a consul be an ambassador or a minister, within the meaning of this t, the process is by the act declared null and void to all intents, con structions, and purposes whatsoever; and the plaintiff, and all others concerned in the suing forth, prosecution, and execution of the writ, are, upon conviction, subject to imprisonment not exceeding three years, and to fine at the discretion of a court. The functionaries protected by the act are "ambassadors and other public ministers of any foreign prince or state authorized, and received as such by the President of the United States." Are consuls within this description? Under the statute of Anne, (in which the descriptive words are precisely the same,) it has been determined that they are not. The question was raised by one Barbuit, a commercial agent of the King of Prussia, and was decided by the Lord Chancellor Talbot, in the 10th year of George II. The Chancellor, after hearing counsel on the point, having proceeded to examine the nature of Barbuit's functions, for the purpose of ascertaining whether he came within the description of a public minister used in the statute, and having observed on his wanting that essential feature of this character-" the being intrusted to transact affairs between the two crowns"-concludes thus: "At most, he is only a consul. It is the opinion of Barbeyrac, Wicquefort, and others, that a consul is not entitled to the jus gentium belonging to ambassadors; and as there is no authority to consider the defendant in any other view than as a consul, unless I -can be satisfied that those acting in that capacity are entitled to the jus gentium I cannot discharge him." (Talbot's Cases, p. 281 et seq.) It is scarcely necessary to remark to you, sir, that our courts, in construing an act borrowed from the British statute-book, constantly adopt the settled construction of the British courts, unless it be most palpably wrong; can scarcely be predicated of any decision made by the Lord Chancellor Talbot. which But that consuls are not public ministers in the sense of the law of nations, (which is that of our act,) does not depend on the authority of Lord Talbot alone; for to his own, and authorities cited by him, may be added those of Vattel, lib. 2, ch. 2, § 34; Bynkershock, Traité du Juge Com pet. ch. 10, § 5; Calliere, De la Manière de Negocier avec les Souverains, 1st part, p. 94, of the London edition of 1750; Bouchard, Théorie de Traités de Commerce, ch. 6, § 1; St. Real, Science du Gouvernement, t. 5. Droit de Gens, ch. 1, § 4 and 11; to which may be added the authority of Valin, Ordonnance de la Marine, tom. 1, lib. 1, tit. 9, De Consuls; and Brown's Civil Law, vol. 2, ch. 14. Supported by such authorities, I think it may be safely assumed that a consul is not a public minister within the meaning of our act, which is that of the general law of nations. I am aware that some modern authors have treated the question "whether a consul be a public minister," as a mere dispute about words. Such are Mr. De Stéck and Mr. Borel. And so it may be, in the abstract light in which they have taken up the question; but in relation to our act of Congress, the question becomes a material question of things, and not merely of words; and on the grounds I have stated, I have no doubt tha our Supreme Court would concur with the Lord Chancellor Talbot in the opinion" that a consul is not a public minister, within the spirit and meaning of the statute;" and if so, there is no law within the Unite States which exempts the consuls of friendly powers, residing among us from the jurisdiction of our courts; and none which authorizes the Pres ident to prosecute those who call them before those courts to answer civilly Is our condition, as a nation, singular in this particular? If I understa General Vives correctly, it is; for I understand him to state it as a doctrine, "sanctioned by the most distinguished publicists," that those who consider themselves aggrieved by the acts of a consul of a friendly power residing among them, have no right to appeal to the courts of the country, and have no redress, except by applying to the Government from which such consul derives his authority: in other words, that a consul is not responsible to the courts of the country in which he resides, either civilly or criminally, and can be called to answer to that sovereign alone under whom he holds his appointment. With great respect for the opinion thus advanced, the authorities, whom it is usual to consult on such occasions, appear to me to hold a different language; and, so far as the civil responsibility of the consul is concerned, to concur, unanimously, in the opposite doctrine. There are not wanting highly respectable authorities who maintain that a consul is subject to the whole extent of the criminal jurisdiction of the country in which he resides. Such are Wicquefort, De l'Ambassadeur et de ses Fonctions, lib. 1, § 5; Bynkershock, Tr. du Juge Comp. des Ambassadeurs ch. 10, § 6; and Brown, Civil Law, vol. 2, ch. 14. There are others who dispute this point, and we are not at present interested in setting it The question with which alone we have now to deal, is the responsibility of the consul to the civil jurisdiction of the country; and I think it may be safely affirmed that there is no author of general notoriety in this country, who maintains the exemption of the consul from this branch of jurisdiction; and no one, who descends to the particular question at all, that does not, on the contrary, admit it. Vattel, in the passage before cited, claims only an exemption from the riminal jurisdiction of the place, (except in the case of enormous crimes ;) and even this exemption is so far from being considered by him as an established principle, that he recommends it as the safer course to settle it by treaty. Valin, (qua supra,) having spoken of consuls as the mere creatures of commercial arrangement between sovereigns, and as not belonging at all to the law of nations, gives us a history of their establishment in the evant and elsewhere, and then proceeds to treat of their privileges thus: The privileges of consuls depend either on treaties made between the espective States, or on custom, so far as the latter has not been controlled by particular treaties; which custom, according to all appearance, is derived rom the capitulations concluded between our kings, those of France, and the Turkish emperors." It might be fairly objected to any consular claim of privilege derived om such a custom as this: 1st. That we are not parties to the treaties rom whence the custom avowedly proceeds. 2d. That the privileges of onsuls in the Levant (dans les Echelles du Levant) have always been reater than those of consuls who reside in more civilized countries; inmuch that Mr. Calliere, while he admits it as a general truth, that conuls are not public ministers within the contemplation of the law of na. ions, yet says that those who reside dans les Echelles du Levant are rearded as ministers. (Manière de Négocier avec les Souverains, part 1, ages 94-'5. London edition of 1750.) It is placing the doctrine on which ĺ nsist on the highest ground, therefore, to appeal to the privileges of conuls in the Levant as the standard. As to these privileges, Mr. Valin says he principal are these: 1st, that of not paying any taxes or imposts; 2d, |