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CLAIM OF ROSS'S REPRESENTATIVES.
The act of 9th July, 1789, bars the payment to representatives of moneys which have remained
in the treasury to the credit of their deceased ancestor, unclaimed since 1781. Moreover, the legal presumptions arising from the lapse of so great a period of time render it
improper for the Secretary of the Treasury to pay claims of this character without special authority from gress.
ATTORNEY GENERAL'S OFFICE,
September 13, 1850. Sir: I have examined Mr. Eaton's statement of the claim of Ross's representatives, which you referred to me a few days ago for my opinion. From that statement it appears that, since the 2d of April, 1781, D. Ross has remained a creditor on the books of the Register of the Treasury for nineteen thousand six hundred and sixty-seven dollars. I infer that this credit was for transactions during the war of the revolution. The children of Ross now demand payment of this claim; and the questions you propound to me are: 1st. Is this claim barred by any statute of the United States ? 2d. Is it barred by lapse of time?
I am too much pressed by the business of my office to write arguments. My opinion is that the claim is barred by the act of Congress of the 9th of July, 1789, (1 Story's Laws, 525.) And as to your second question, it seems to me still more clear that the long delay which has occurred in this case, and the great lapse of time, amounting to near seventy years, create such strong legal presumptions against the claim that it ought not to be allowed and paid by the officers of the treasury without a previous recognition of the debt by Congress, and authority from them to liquidate and pay it. I have the honor to be, with great respect, sir, your obedient servant,
J. J. CRITTENDEN. Hon. THOMAS CORWIN,
Secretary of the Treasury.
RIGHT OF A CHOCTAW RESERVEE TO A PATENT.
A Choctaw head of a family, entitled, under the 14th article of the treaty of Dancing Rabbit
Creek, to a reservation of land, who gave the notice, made the claim, and continued the residence therein required, is entitled to a patent, although the agent, whose register a former Executive declared io be the evidence in such cases, failed to make the necessary entry, inasmuch as a subsequent agent did make entry of the facts and location, and certified them to the Gen
eral Land Office. The treaty, under which the right has accrued, is silent concerning any such register as that re
quired to be kept by the agent.
OFFICE OF THE ATTORNEY GENERAL,
September 17, 1850. Sir: It appears from the files of my office that, as far back as February, 1849, the case of Abbah Hotiah, an Indian woman, claiming a reservation of land under the Choctaw treaty of Dancing Rabbit Creek, was submitted for my opinion. It appears
that she was a Choctaw woman, the head of a family, and entitled under the 14th article of that treaty to claim a reservation of
land for herself and children ; that, in due time, she gave notice and made claim to the agent as required by the said article; that the agent failed to make an entry of this in his register; and that he afterwards died. But another agent of the government, authorized for the purpose, approved of the facts above stated; and, being satisfied of the justice of her claim, proceeded to make a location of it, which was duly certified and returned to the General Land Office. The only objection which I understand now to be made to the issuing of a patent on that location is, that the name and claim of Abbah Hotiah do not appear on the register of the first-mentioned agent; and that President Jackson had made an order that that register should alone be received as evidence of such claims. The further fact appears in this case that the said Abbah continued to reside on the land for five years, as required by the treaty. My opinion is that this case does not come within the mischief intended to be guarded against by the order of the late President; but that the claimant has shown herself and her claim to be within the terms and the protection of the said treaty; and that she is entitled to a patent for the land located for her in virtue of her said claim, notwithstanding her name may not have been entered by the agent on his list or register.
The treaty is silent as to the making of any such registry or list, and the Indians had nothing to do with the keeping of it. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDEN. Hon. A. H. H. STUART,
Secretary of the Interior.
ADVANCES FOR CONSTRUCTION OF CERTAIN STEAMSHIPS.
The opinion delivered on the 20th ultimo is reconsidered ; and although the provisions of the act
of 3d August, 1848, are susceptible of a different construction, the Attorney General adheres to the construction before given, as being most conformable to the language of the said act. If, however, the Secretary of the Treasury shall adopt, from equitable considerations arising from the fact that the four steamers already built are equal in power and tonnage to the five contracted for, and fully adequate to the mail service, or for any other reason, a different constraction, it may not be improper.
ATTORNEY GENERAL'S OFFICE,
September 17, 1850. Sir: Agreeably to the request contained in your letter of the 12th instant, I have reconsidered the opinion which I communicated to you in my letter of the 20th of last month, in relation to the case of E. K. Collins and his associates. That opinion was founded mainly on the provisions of an act of Congress of the 3d of August, 1848, (Ú. S. Statutes at Large, 267,) which is not very explicit in its terms nor in its intentions. I must admit that those provisions are susceptible of a construction different from that which I have given to them, for I know that others, whose judgment is entitled to the greatest consideration, have so interpreted them as to entitle Mr. Collins and his associates, upon the four steamers they have built, to the advance of the whole sum of three
hundred and eighty-five thousand dollars—that being the amount of the annual compensation contracted to be paid for carrying the mail. I am not, therefore, over confident in the opinion which I formerly gave you. My construction may be too strict, but I must still adhere to it as most conformable, in my judgment, to the expressions and letter of the act. Be assured, sir, that I feel no pride of opinion on the subject, and that I shall rather be gratified, if, by the adoption of a different construction of the act in question, or by any equitable consideration of the circumstances of the case, you shall think it proper to advance, at once, to Mr. Collins and his associates the balance of three hundred and eighty-five thousand dollars in aid of their great and noble enterprize. The equitable circumstances, above alluded to, are, that the four steamers that have been built are equal in power and in tonnage to the five that were contracted for, and that they are fully adequate to the mail service to be performed. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDEN. Hon. W. A. GRAHAM,
Secretary of the Navy.
CONSTITUTIONALITY OF THE FUGITIVE SLAVE BILL.
The provisions of the bill, commonly called the fugitive slave bill, and which Congress have sub
mitted to the President for his approval and signature, are not in conflict with the provisions
of the constitution in relation to the writ of habeas corpus. The expressions used in the last clause of the sixth section that the certificate therein alluded 10
“shall prevent all molestation" of the persons to whom granted, “ by any process issued,” &c., probably mean only what the act of 1793 meant by declaring a certificate under that act a sufficient warrant for the removal of a fugitive; and do not mean a suspension of the writ of
habeas corpus. There is nothing in the act inconsistent with the constitution, nor which is not necessary to re
deem the pledge which it contains, that fugitive slaves shall be delivered upon the claim of their
ATTORNEY General's Office,
September 18, 1850. Sır: I have had the honor to receive your note of this date, informing me that the bill commonly called the fugitive slave bill, having passed both houses of Congress, had been submitted to you for your consideration, approval, and signature, and requesting my opinion whether the 6th section of that act, and especially the last clause of that section, conflicts with that provision of the constitution which declares that “the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it."
It is my clear conviction that there is nothing in the last clause, ror in any part of the 6th section, nor, indeed, in any of the provisions of the act, which suspends, or was intended to suspend, the privilege of the writ of habeas corpus, or is in any manner in conflict with the constitution.
The constitution, in the 2d section of the 4th article, declares that
no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
It is well known and admitted, historically and judicially, that this clause of the constitution was made for the purpose of securing to the citizens of the slaveholding States the complete ownership in their slaves, as property, in any and every State or Territory of the Union into which they might escape. (Prigg vs. Commonwealth of Pennsylvania, 16 Peters, 539.) It devolved on the general government, as a solemn duty, to make that security effectual. Their power was not only clear and full, but, according to the opinion of the court in the above cited case, it was exclusive—the States, severally, being under no obligation, and having no power to make laws or regulations in respect to the delivery of fugitives. Thus the whole power, and with it the whole duty, of carrying into effect this important provision of the constitution, was with Congress. And, accordingly, soon after the adoption of th constitution, the act of the 12th of February, 1793, was passed, and that proving unsatisfactory and inefficient, by reason (among other causes) of some minor errors in its details, Congress are now attempting by this bill to discharge a constitutional obligation, by securing more effectually the delivery of fugitive slaves to their owners. The 6th, and most material section, in substance declares that the claimant of the fugitive slave may arrest and carry him before any one of the officers named and described in the bill; and provides that those officers, and each of them, shall have judicial power and jurisdiction to hear, exainine, and decide the case in a summary manner—that if, upon such hearing, the claimant, by the requisite proof, shall establish his claim to the satisfaction of the tribunal thus constituted, the said tribunal shall give him a certificate, stating therein the substantial facts of the case, and authorzing him, with such reasonable force as may be necessary, to take and carry said fugitive back to the State or Territory whence he or she may have escaped—and then, in conclusion, proceeds as follows: "The certificates in this and the first section mentioned, shall be conclusive of the right of the on or persons in whose favor granted to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.”
There is nothing in all this that does not seem to me to be consistent with the constitution, and necessary, indeed, to redeem the pledge which it contains, that such fugitives "shall be delivered up on claim" of their owners.
The Supreme Court of the United States has decided that the owner, independent of any aid from State or national legislation, may, in virtue of the constitution, and his own right of property, seize and recapture his fugitive slave in whatsoever State he may find him, and carry him back to the State or Territory from which he escaped. (Prigg vs. Commonwealth of Pennsylvania, 16 Peters, 539.) This bill, therefore, confers no right on the owner of the fugitive slave. It only gives him an appointed and peaceable remedy in place of the more exposed and insecure, but not less lawful mode of self redress; and as to the fugitive slave, he has no cause to complain of this bill—it adds
no coertion to that which his owner himself might, at his own will, rightfully exercise ; and all the proceedings which it institutes are but so much of orderly judicial authority interposed between him and his owner, and consequently of protection to him, and mitigation of the exercise directly by the owner himself of his personal authority. This is the constitutional and legal view of the subject, as sanctioned by the decisions of the Supreme Court, and to that I limit myself.
The act of the 12th of February, 1793, before alluded to, so far as it respects any constitutional question that can arise out of this bill, is identical with it. It authorizes the like arrest of the fugitive slavethe liketrial—the like judgment—the like certificate, with the like authority to the owner, by virtue of that certificate as his warrant, to remove him to the State or Territory from which he escaped, and the constitutionality of that act, in all those particulars, has been affirmed by the adjudications of State tribunals, and of the courts of the United States, without a single dissent, so far as I know. (Baldwin, C. C. R. 577, 579.)
I conclude, therefore, that so far as the act of the 12th of February, 1793, has been held to be constitutional, this bill must also be so regarded; and that the custody, restraint, and removal to which the fugitive slave may be subjected under the provisions of this bill, are all lawful, and that the certificate to be granted to the owner is to be regarded as the act and judgment of a judicial tribunal having competent jurisdiction.
With these remarks as to the constitutionality of the general provisions of the bill, and the consequent legality of the custody and confinement to which the fugitive slave may be subjected under it, I proceed to a brief consideration of the more particular question you have propounded in reference to the writ of habeas corpus, and of the last clause of the 6th section, above quoted, which gives rise to that question.
My opinion, as before expressed, is, that there is nothing in that clause or section which conflicts with, or suspends, or was intended to suspend, the privilege of the writ of habeas corpus. I think so because the bill says not one word about that writ-because, by the constitution, Congress is expressly forbidden to suspend the privilege of this writ“ unless when in cases of rebellion or invasion the public safety may require it;" and, therefore, such suspension by this act (there being neither rebellion nor invasion) would be a plain and palpable violation of the constitution, and no intention to commit such a violation of the constitution, of their duty and their oaths, ought to be imputed to them upon mere constructions and implications—and, thirdly, because there is no incompatibility between these provisions of the bill and the privilege of the writ of habeas corpus in its utmost constitutional latitude.
Congress, in the case of fugitive slaves, as in all other cases within the scope of its constitutional authority, has the unquestionable right to ordain and prescribe for what causes, to what extent, and in what manner persons may be taken into custody, detained, or imprisoned. Without this power they could not fulfil their constitutional trust, nor perform the ordinary and necessary duties of government. It was never heard that the exercise of that legislative power was any encroachment upon or suspension of the privilege of the writ of habeas corpus. It is only by some confusion of ideas that such a conflict can be supposed to exist. It is not within the province or privilege of this great writ to loose those