Page images
PDF
EPUB

personal or official, for you; but has been forced on me by a current of duties which I could not turn aside. I am sorry now to be obliged to decline an answer to your question, which I do simply on the ground that I have no legal authority to answer it officially.

[ocr errors]

The commission of Attorney General authorizes and empowers him to execute the duties of that office according to law; and the law which creates this office prescribes its duties in the following terms: "Whose duty it shall be to prosecute and conduct all suits in the Supreme Court, in which the United States shall be concerned, and to give his advice and opinions 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." Under this law, which is the only one upon the subject, I do not think myself authorized to give an official opinion in any case, except on the call of the President, or some one of the heads of departments; and I should consider myself as transcending the limits of my cominission in a very unjustifiable manner, in attempting to attach the weight of my office to any opinion not authorized by the law which prescribes my duties. You will, I trust, excuse me, therefore, in declining to give the official opinion which you request; and which I assure you I do, not from any want of respect to you, but purely from a sense of official duty, and my respect for the law which prescribes that duty.

If you think the matter of sufficient consequence to make an official opiuiou from me desirable, you will, perhaps, have it in your power to give your application such a direction, through the Navy Department, or that of War, as to justify me in expressing the opinion officially, which I have every personal disposition to give.

I am, sir, &c.,

To Major SAMUEL MILLER,

Headquarters of Marines, Washington.

WM. WIRT,

DUTY OF PRESIDENT AS TO A REGISTER OF WILLS.

Where an act of Congress gives the President power to appoint an officer, without defining the tenure by which the office is to be held, a commission may legally issue to the officer to hold the office during the pleasure of the President.

ATTORNEY GENERAL'S OFFICE,

June 15, 1818.

SIR: I have considered the subject which you have submitted to me, by the desire of the President of the United States, for my official opinion, which I have now the honor to give you.

The gentleman who now fills the office of register of wills for the county of Washington, holds that office, you state, by a commission from the President, which authorizes him to hold the office during the pleasure of the President. If the President had no right to issue such a commission, the commission is void, the office vacant, and the President has now a right to commission another person anew: if, on the contrary, the President had the right to issue such a commission, he has, on the face of that commission, the power of removal and the authority to reappoint.

But as the act of Congress gives the President the power to appoint this officer, without defining the tenure by which it shall be held, I perceive nothing irregular in the commission which has been issued. Whenever Congress intend a more permanent tenure, (during good behavior, for example,) they take care to express that intention clearly and explicitly; and in every instance, I believe, in which they give a naked power to appoint, (saying nothing of the tenure,) the practice has been to fill up the commissions in the manner in which you represent this to have been done: and this without complaint, so far as I have heard; and without any just ground to comp'ain, that I can discern.

I have the honor to be, sir, &c.,

TO ROBERT BRENT, Esq.,

For the President of the United States.

WM. WIRT.

1

POWER OF THE PRESIDENT CONCERNING BAIL.

The President does not possess the power to direct a person indicted for cheating the accounting officers by means of forged papers, supporting fictitious losses, to be let to bail or discharged on his own recognizance.

OFFICE OF THE ATTORNEY GENERAL,

June 23, 1818.

SIR: I have, according to your request, examined the petition and memorial of Samuel Pease, together with the certificates which accompany it. This man is under prosecution for a cheat effected on the accounting officers of the United States by the means of forged papers, supporting fictitious claims for losses alleged to have happened during the late war. His prayer is, that the President will direct him to be bailed, or discharged without bail, on his own bond, to take his trial at the next term. The power which the President is thus called upon to exercise does not, in my opinion, belong to him by the constitution and laws of the United States. The question of bail is a judicial, not an executive one. Under this view of the subject, it has become unnecessary to examine the merits of the case on which the petitioner insists; but if it had been necessary, instead of relying on his statement, it would have been necessary to have called upon the United States attorney for the district, together with the documentary and parol proof on which it is understood a bill has been found by the grand jury. But let the merits of the petitioner's case be what they may, they would be unavailing, because the President does not possess the power which he is called upon to exercise.

To the PRESIDENT OF THE UNITED STATES.

WM. WIRT.

THE SALINE BANK OF VIRGINIA.

The stockholders are not individually liable for the notes of the Saline Bank, for the reason that both the notes issued by the bank and the discount notes given to it are contracts founded in a breach of the law, and which a court will not lend its aid to enforce.

Neither can the Saline Bank, as a bank, sustain suits, being unchartered, and all their transactions, contracts, and promises being founded in a breach of the law.

OFFICE OF THE ATTORNEY GENERAL,

June 29, 1818.

SIR: I have considered, very deliberately, the question submitted a few days since for my opinion, and have now the honor to give you the result.

The question is, whether the stockholders of the Saline Bank of Virginia be not individually liable for the notes issued by that bank, the bank not having been an incorporated one?

As a general question, and in the absence of any municipal prohibition against the operations of such a company, I should have no doubt of their competency to bind the stockholders, individually, by their notes; for I should consider them as a mercantile association, trading under the firm of "the president, directors, and company," &c., and the stockholders as the partners constituting that firm. In the few remarks I exchanged with you on Friday evening on this subject, I looked to the question merely as a general one, unaffected by any legislative prohibition; for at that time I had read only your question, in which the particular bank is not named; and, therefore, expressed the opinion which I should again express were the case such a one as I supposed it to be. On reading the letter, however, covered by your envelope, I find it to be the case of the Saline Bank, which I had occasion to consider very elaborately previous to my appointment to this office; and on examining now the opinion which I then ex. pressed, I see no reason to alter it. A copy of this opinion is now enclosed; and that you may understand it the more readily, I send you, also, the statement of the case, and the interrogatories, by which that opinion was drawn from me. This may be useful in another point of view; for I discover, by the letter from your correspondent, that you are asking information, generally, as to the affairs of the Saline Bank; and the letter of Mr. Duncan (who, I understand, is a very honorable member of the profession of law) may shed some light on the subject, in addition to that furnished by General Jackson. You will discover that the embarrassments of the bank have split the stockholders and directors into two very acrimonious parties; both composed of men heretofore respectable, but on this occasion charging each other, reciprocally, with the most sordid views and the most ruinous policy.

The case, you will observe, was once before the chancellor of the Winchester district, on an injunction obtained by General Jackson's clients; but I have understood that the chancellor has since thrown the subject wholly out of court, on the ground taken in my opinion-that the association was when created, at first, in opposition to the laws of the land, and all their operations, therefore, illegal and void; to enforce which, or even to adjust their controversies among themselves, a court would not lend its aid.

As to the correctness or incorrectness of the opinion which accompanies this letter, you will be yourself immediately able to judge; because I have given fully and explicitly both the reasons and authorities on which it is founded. I will merely observe, that the case was one of the first impression in Virginia, and it is, therefore, quite uncertain how the court of last resort in that State would settle it; the principles of law seeming to point

to one conclusion of a very startling character, while every consideration of convenience in the particular case required another. I incline to think, however, that that court would consider the general convenience arising from an adherence to the settled principles of law, as an object of greater consequence than the particular inconveniences brought upon the parties by themselves, by an open violation of a public law of the land.

The second opinion, of which General Jackson speaks with his usual courtesy, was this: Judgments were represented as having been entered in the name of Webster as plaintiff, but for the benefit of the stockholders; thus it appeared upon the record that Webster was merely the nominal plaintiff, and that the real plaintiffs in interest were the stockholders. On this short statement of the case, I was asked who had the right to direct and control the issuing of the executions? and I answered, the real plaintiff's in interest. In the courts in which I have practised in Virginia, it is no unusual thing to see a man the holder and real owner of a bond or promissory note, which had been originally made payable to another, and which had been passed to him by simple transfer, without assignment. In such cases, the suits are necessarily brought in the name of the obligee or payee, for the use and benefit of the real owner of the debt: so that the nominal plaintiff is one person, and the real plaintiff in interest is another. In such cases, it was never doubted that the real plaintiff in interest, and not the nominal plaintiff, had the whole and sole control and authority over the executions; and I consider the case of Webster and the stock. holders of the Saline Bank to be essentially the same in principle.

As it may throw additional light on the affairs of this bank, I enclose you, also, a copy of the bill for injunction, and the answer, which were before the chancellor, and request that they, together with Mr. Duncan's letter, may be returned when you shall have satisfied yourself of their

contents.

To the SECRETARY OF THE TREASURY.

[ocr errors]

WM. WIRT.

RICHMOND, August 25, 1817. "DEAR SIR: My reply to yours of the 17th ultimo was suspended until the answer in chancery to the bill filed by Adams should arrive. The answer came to hand only a mail or two ago; since which time I have been so incessantly engaged, that it has not been till now that I could take up the case of the Saline Bank.

"The case is a new one, and surrounded with considerable difficulty, which necessarily diminishes the confidence I feel in my own opinions. Such as they are, however, you shall have them without reserve.

"Before I proceed to answer your questions specifically, it may clear the way to take a view of the several acts of Assembly, and the principles of law on which those answers must rest.

"The operation of the act of the 24th of February, 1816, more effect ually to prevent the circulation of notes emitted by unchartered banks,' having been suspended as to the Saline Bank by the act of the last ses sion, I shall first consider the case as standing clear of these acts, depending on pre-existing laws.

and

"On the 25th January, 1805, was passed 'An act to amend the act "to prevent the circulation of private bank notes;"' (2d vol. of the Rev. Code, page 79.) By this it is enacted that it shall not be lawful for any

[ocr errors]
[ocr errors]

person to offer in payment any note or bill, whether payable to bearer or not, which shall be emitted by any banking company not having a charter;' and by the 2d section, it is enacted that offenders against the true intent and meaning of this act shall incur all the pains and penalties of the act entitled "An act to prevent the circulation of private bank notes." The penalties prescribed by the law thus referred to are, the forfeiture of ten times the value of the sum mentioned in the note; the liability to be bound to their good behaviour; and the forfeiture of the recognizance by a second offence. (See 1st Rev. Code, page 16.) It is true, these acts contain no positive prohibition of unchartered banking companies; but their enactment is equivalent to a positive prohibition. For we are told by Lord Holt (Carthew, 252) that every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, though the statute itself does not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there are no prohibiting words in a statute.' So, also, it is a settled principle of law, that all contracts, the consideration whereof, although not against the letter, is against the policy of the statute, are illegal; and that courts will not lend their aid to enforce such contracts. It is on this principle that all the cases of stockjobbing contracts against the 7th Geo. II, chap. 8, turn. (See particularly the cases of Steers vs. Lashley, 6 T. R., 61; and Brown vs. Turner, 7 T. R., 630; and 1 Esp. N. P., 91, where the principle is expressly advanced and supported by authority.) By the statute 6 Geo. I, c. 18, §12, it is enacted that all policies of insurance on ships at sea, made by any corporation, (other than the two corporations therein mentioned,) or by persons acting in partnership, shall be void.' Two men form a partnership to insure, contrary to this act: one of them receives all the premiums, and the other sues for his share. He cannot recover; and the reason given is, 'because the plaintiff's claim arose out "of a transaction which was illegal," and therefore the court would not give it effect.' (Booth vs. Hodgson, 6 T. R., 405.) So, if one of such partners pay the whole of such losses, he cannot recover from his partner his share of the losses so paid. (Mitchell vs. Cockburne, 2 H. B., 379; and Aubert vs. Maze, 2 Bos. and Pul., 371.) So, where one of such partners had been compelled to pay the whole of such loss, and the other partner had paid his share into the hands of a broker, it was holden that that moiety could not be recovered from the broker by the partner who had paid the whole loss. (Sullivan vs. Greaves, Park Ins., 8.)

"The principles thus established are these:

"1. That a court will never lend its aid to enforce a contract founded in a breach of the law, or founded in a breach even of the policy of a law. "2. That an act of assembly annexing a penalty to any transaction whatever is equivalent to a positive prohibition of that transaction, renders it illegal, and invalidates every contract growing out of it, or, in the language of Lord Holt, for or about it.'

"On these principles, I consider the Saline Company as an illegal association, under the act of 1805; and their banking transactions as so many illegal contracts, which a court cannot properly lend its aid to enforce. "In Pennsylvania this has been expressly decided as to the bank notes of unchartered banks: that is, that no action can be maintained to recover the amount of such notes. The cases were those of Anthony's executors

« PreviousContinue »