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District of Columbia, made in pursuance of the provisions of the act of Congress of the 2d of March, 1831, section 13, by which it is declared that every person, upon a second conviction of larceny, where the property stolen is under the value of five dollars, or of a second conviction of receiving stolen goods, knowing them to be stolen, where the property stolen is under the value of five dollars, shall be sentenced to suffer im. prisonment and labor for a period not less than one nor more than three years. The law makes no distinction between slaves and free persons. Every offender, upon conviction, is liable to the punishment denounced by the statute. T'he description in the indictment is but for the purpose of identification, which it is recessary should be inserted and proved as laid, but which gives neither color nor grade to the offence or to the pun. ishment. Daniel, therefore, whether slave or free, was liable to be proceeded against and punished. The facts disclosed by the petition of Mr. Evans present a case proper, in my judgment, for the intervention of the pardoning power. The character of the offence for which the slave has been convicted, the interests of the master in his property, implicated without any fault on his part, and the absence of every motive to con. tinue an inprisonment which can result in nothing promotive of public policy, and which can be terminated without prejudice to the rights of any, are considerations which strongly merit, as they would fully justify, your interposition. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. To the PRESIDENT.
BALANCES OF PENSIONS DUE AT DEATH OF PENSIONERS—TO WHOM
Where the husband of the applicant, Commodore David Porter, in his lifetime, applied for a
pension for disability incurred in 1-03, and the same was allowed by the proper departn.ent, at the rate of forty dollars per month, to take effect from the 24th day of January, 1825, when he retired from service in the navy; and then, in 1839, made an application for arrears from 1803, under the provisions of the act of 3d of March, 1837, and received a reply from the Secretary of the Navy, deciding that there was due him a pension, at the rate of twelve dollars and fifty cents per month, from 1803, when his disability was incurred, to the 24th of January, 1825, but did not receive the same in his lifetime; and the widow applies for it after his death-HELD, that such allowance exists in the form of a debt due to the estate of
Commodore Porter, and the legal representatives are entitled to receive it. It is so much money in the hands of the government to the credit of Commodore Porter,
which belongs, since his death, to his executor if he has left a will, or to his administrator if he has died intestate.
ATTORNEY GENERAL'S OFFICE,
August 28, 1943. SIR: The application of Mrs. Evelina Porter, referred to this office for my opinion by your communication of the 15th instant, is based upon the following facts: Commodore David Porter, her husband, in 1838, made application for a pension for a disability incurred in 1803, which was allowed by the proper department, at the rate of forty dollars per month, to take effect from the 24th day of January, 1825, when he retired froin service in the navy of the United States. In February, 1839, he made a second application, claiming his arrears of pension from 1803, under the provisions of the act of the 3d of March, 1837. Mr. Paulding, then Secretary of the Navy, by his letter to the commodore, under date of the 12th of February, 1839, is shown to have entertained this demand; and to have decided that there was due to him, under the act of 1837, a pension at the rate of twelve dollars and fifty cents per month from 1803, when his disability was incurred, to the 24th of January, 1825, when his allowance, upon the application of 1835, commenced. The sum thus ascertained to be due was not paid to the commodore during his lifetime, and Mrs. Porter now claims it, as properly payable to her for the benefit of herself and her daughters; and the question propounded for my opinion is, “whether, under the circumstances above stated, Mrs. Porter is entitled to said arrears of pension from 1803 to 1825 ?”
The acts of Congress more especially affecting this case, are those of 1800, ch. 33, sec. 8, and 1837, ch. 406, sec. 2. Their provisions seem to me to be clear and unambiguous, and, having been acted on in reference to this particular case by the competent authority, undoubtedly embrace the present claim. The decision of Mr. Secretary Paulding, upon the application of Commodore Porter, is in the nature of a judgment ren. dered by a tribunal of competent jurisdiction, which settled the rights of the claimant, and put him upon the footing of an acknowledged creditor to an ascertained amount of the government. As such creditor he might at any time during his life have demanded payment, which would not and could not righifully have been refused him. The fact of his forbearance of that demand does not, I think, extinguish this debt; but it remains due, and can be discharged only by payment to his legal representatives. I have said legal representatives, because Mrs. Porter, qua his widow, has no claim on this fund. In the view ( have taken of this case, the sum due is in the precise predicament of any other money to which the commodore at the period of his death was entitled. It is so much money in the hands of the government to his credit, which belongs, since his death, to his executor if he has left a will, or to his administrator if he has died intestate.
With the disposition of the fund the government has nothing to do; that is a matter within the control of the local tribunals charged with the settlement of his estate; the whole extent of the duty and responsibility of the governmeut being to pay over the amount in its keeping to those who represent the deceased, to whom it belonged.
In expressing this opinion of the validity of this claim, I ly no means design to disturb any usage that has obtained in the Pension Office, which, independently of the respectable authority under whose sanction it has been established, is entitled to the highest consideration, because it is usage; it being of the first importance in the administration of the gov. ernment, as far as it operates upon the pecuniary rights of the citizen, that its rule of action should be uniform. I intend only to say that this case, under its particular circumstances, is covered by the express provisions of the law, and is fortified by the clearest equity.
The papers are returned.
JOHN NELSON. Hon. David HENSHAW,
Secretary of the Navy.
EXTRADITION OF FUGITIVES FROM JUSTICE, UNDER TREATY OF WASH
The Executive will not issue his warrant for the surrender of fugitives under the 10th article
of the treaty of Washington, except in cases where the preliminary proceedings have been had, and properly certified to him.
ATTORNEY GENERAL'S OFFICE,
August 29, 1813. Sir: The papers left with me yesterday do not hring the case to which they relate within the control of the President. The authority to issue a warrant for the surrender of fugitives is made dependent, by the 10th article of the treaty of 9th of August, 1842, upon certain preliminary proceedings, which have not been pursued in this case. There is nothing in the case to certify to the executive authority the fact that an offence within the terms of the treaty has been committed, or that there is such evidence of criminality as, according to the laws of the place where the alleged fugitives have been found, would justify their apprehension and commitment for trial if the crime or offence had been there committed, or that any complaint has been made to any judge or other magistrate of the government of the United States, by whom such evidence of criminality has been heard and considered. All these prerequisites must be complied with, and a regular demand made, before the President can act under the treaty.
Without undertaking to determine whether the case made out by the papers, however formally certified, would bring the parties arrested within the operation of the 10th article, it is sufficient to say that such a case is not now presented, and that the executive authority cannot properly interfere. I have the honor to be, very respectfully, sir, your obedient servant,
JOHN NELSON. W.S DERRICK, Esq.,
Acting Secretary of State.
CONCERNING THE SLAVE TRADE.
The selling of an American vessel in the port of Rio Janeiro to a slave dealer, deliverable on
the coast, is not of itself an aiding or abetting of the slave-trade. The vendor must not lend assistance to such slave dealer by navigating the vessel to the coast of Africa upon an outward slave-trade voyage; for, if he does, he becomes thereby a participant in the trade, and, as such, is subject to punishment; but if he only make a bona fide sale of his property, delivo
erable upon the coast of Africa or elsewhere, he does not incur any responsibility: Nor does the chartering of a vessel for such an object per se involve any violation of our
statutes. In this, as in all other cases, the character of the act must be reflected from the purpose with which it is done. If an American citizen charter his vessel for the prosecu. tion of a slaving voyage, he will be guilty of a violation of the slave-trade acts; but if he charter his vessel for the prosecution of a voyage which is prima facie innocent, the fact that it may be converted to an inhibited ulterior purpose will not expose him to penalty, or bis vessel 10 forfeiture.
ATTORNEY GENERAL'S OFFICE,
August 29, 1843. Sir: I have had the honor to receive your communication of the 22d ultimo, covering a copy of a letter, and its enclosure, received from G. W. Slocum, esq., United States consul at Rio Janeiro, and requesting me to furnish the department with my construction of the laws referred to. Mr. Slocum, in his letter, adverts to certain inquiries made by the master of the barqne Lucy Penniman, of Machias, to which his reply is furnished; and also to certain acts of Congress in relation to the slave trade, commu. nicated by him to said master; but what the precise inquiries are, or upon what acts of Congress he has placed his interpretation, the papers transmitted contain no information. With a view, therefore, to cover this inquiry in its most comprehensive aspect, I have taken the liberty herewith to submit for your consideration a brief synopsis of our legislation affecting the slave trade, accompanied by such suggestions in regard to their several provisious as may be calculated to afford the information desired at my hands, and to illustrate the purposes for which they have been enacted.
By the first clause of the ninth section of the first article of the consti. tution of the United States, Congress was restrained from any act of legislation prohibiting the migration or importation of such persons as any of the States then existing should think proper to admit prior to the year 1808. This inhibition applied only to the importation of such persons, and left Congress at liberty to legislate upon the slave trade, as far as it might be prosecuted extra-territorially by citizens of the United States, or in vessels belonging to citizens of the United States. In the exercise of this power, the act of the 22d of March, 1794, was passed. It forbade citizens and other persons, whether as owners or agents, building, equipping, fitting, loading, or otherwise preparing any ship or vessel within any port or place of the United States, or causing any ship or vessel to sail from any port or place within the same, for the purpose of carrying on any trade or traffic in slaves to any foreign country, or for the purpose of procuring from any foreign place, kingdom, or country, the inhabitants of such kingdom, place, or country, to be transported to any foreign country, port, kingdom, or place whatever, to be sold or disposed of as slaves, and denounced the penalty of forfeiture against every vessel so fitted out or caused to sail for such purpose. In addition to which, it rendered the persons engaged in building, &c., said vessels, liable to severe fines and penalties. It likewise subjected every citizen of the United States taking on board, receiv. ing, or transporting such persons for the purpose of selling them as slaves, to the payment of iwo hundred dollars for each persou so taken on board, received, or transported.
The next act passed was that of the 10th of May, 1800. It prohibited citizens of the United States from holding any riglit or property in vessels employed in transporting slaves from one foreigu country to another, from serving on board vessels of the United States so employed, and from serv. ing on board of foreign ships or vessels so employed. It further author. ized the commissioned vessels of the United States to seize and take any vessel employed in carrying on such trade contrary to its provisions, and the provisions of the act of 1794, subjecting the vessels so seized, with the goods, &c., found on board, to forfeiture, and the persons interested therein to severe penalties.
By the act of the 28th of February, 1803, masters of vessels were pro. hibited from bringing into any port, where the laws of a State prohibited importation, any negro, mulaito, or other person of color, not a native, a citizen, or registered seaman of the United States, or seamen natives of countries beyond the Cape of Good Hope, denied the right of entry to
vessels arriving in any of said ports or places with such persons on board, and forfeited any such vessel from which any such negro, &c., might be landed in any such port, or on the coast of any State prohibiting such importation or admission.
The various provisions of these several acts, whilst they were in strict harmony with the section of the constitution hefore referred to, covered the whole extent of the power with which Congress was invested. They regulated the subject in reference to our citizens and vessels extra territorially, and protected against violation the policy of certain of the States which had previously prohibited the introduction of slaves within their limits.
Then followed the act of the 2d of March, 1807, in execution of the power conferred by the constitution. This act prohibited, from and after the 1st day of January, 1808, the importation into the United States, or any of the Territories thereof, from any foreign kingdom, place, or country, any nego, mulatto, or person of color, with intent to hold, sell, or dispose of such negro, mulatto, or person of color, as a slave, or to be held to service or labor, and rendered subject to forfeiture all vessels fitted out or sailing after the said 1st day of January, 1808, from any port of the United States, for the purpose of being employed in the said trade, and exposed to heavy penalties all persons therewith connected. It moreover author. ized the employment, by the President, of armed ships to cruise on any part of the coast to guard against violations of the act, and to seize and bring in for adjudication and condemnation all vessels of the United States wherever found, which might be engaged in the prohibited traffic. There are various other provisos in the act, all of which were designed to render effective this effort by Congress to suppress this inhuman trade.
The act of the 20th of April, 1818, ch. 86, repealed the first six sections of the act of 1807, and provided more effectually for the accomplishment of the objects contemplated by that act, by subjecting to aggravated penalties all persons engaged in importing slaves into the United States, all persons who should equip vessels for the trade in the ports of the United States, &c., and rendering in all cases vessels so employed or equipped liable to forfeiture, &c.
The act of the 3d of March, 1819, ch. 224, authorized the President to employ the armed vessels of the United States to enforce the acts previously passed, and to seize and bring into port vessels employed in the prosecution of the trade, &c.
And the act of the 15th May, 1820, declares that all citizens of the Uni. ted States employed in foreign ships or vessels, and all persons whatever being of the crew or ship's company of any ship or vessel belonging in whole or in part to citizens of the United States, who shall land on any foreign shore and seize any negro or mulatto, &c., with intent to make said negro or mulatto a slave, shall be adjudged pirates, &c., and on conviction thereof shall suffer death, &c.
The object of these various acts is the suppression of the slave-trade, of which they interdict the prosecution by American citizens, or by any and all others, in American ships or vessels; and it follows that all such citi. zens or persons, and the vessels employed by them, within the purview of the acts, are obnoxious to the penalties and forfeitures thereby denounced. But whether in any particular case these penalties have been incurred, must depend upon its peculiar circumstances. The laws have not interdicted trade with the coast of Africa, and there are no articles of