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of Congress—which gives to the courts of the United States the express power of fixing the day. I find, on inquiry, that the courts of the United States have adopted, in this particular, the practice of the State courts in which they hold their sessions, and these are various: death warrants from the governor being required in several of the States; and in others the courts fixing the day. It is certainly desirable that there should be a uniform rule to guide the conduct of the President in this respect. Such a rule, however, can be prescribed by Congress only; and there being none such yet prescribed, it seems to me that the President must, of necessity, to give effect to our laws, follow that which the courts have adopled: that is, issue warrants for execution in all cases where they are made necessary by the practice of the State in which the sentence is passed. Such is the case in the present instance, and the case has become one of great emergency; for the convicts, finding that they are not to be pardoned, have become desperate, and have once actually broken the prison and made their escape: but they have been retaken. They will, however, unquestionably attempt it again, and probably with more success, unless they shonld be guarded at an enormous expense to the United States. I submit to you, therefore, sir, the necessity of drawing the President's immediate attention to this subject; And have the honor to be, &c.,
WM. WIRT. To the SECRETARY OF STATE,
THE POWER TO CAUSE AN ARREST.
Arrest for trial is a proceeding belonging to the judiciary, not to the executive branch of the
government ; and the warrant of arrest must be founded on an information on oath. The President has no power to cause an arrest to be made except upon probable cause stupa
ported by oath or affirmation. (Vide article VI of Amendments to the Constitution.) The President may issue his proclamation against an offender who has once been regularly arrested and made his escape; for, in such case, the regularity of the arrest implies that the probable case has been furnished on oath according to the constitution..
ATTORNEY GENERAL'S OFFICE, September 8, 1918. Sir : Mr. Calhoun has called on me, at the desire of the Secretary of State, (now absent,) for the purpose of inquiring whether I would advise a proclamation against Obed Wright, of Georgia, or private instructions to the marshals of the several districts and Territories, for the apprehension of the fugitive. On iuquiry at the Department of State, no precedent is to be found for either course, as you will find from Mr. Brent's answer to some questions put by ine, which I enclose. The case to which he alludes by memory is that, he says, of Bradford, who was implicated in the Pennsylvania insurrection. But we know not what degree of evidence General Washington might have had against Bradford to warrant his proclamation ; or whether he relied upon the openness and notoriety of the fact of the insurrection, which was very little, if anything, short of bellum flagrans. The result of the inquiry is, that there is no certain precedent to guide us as to either course ; and I have very strong doubts (in which Mr. Calhoun concurs) whether either of the courses proposed is warranted by the constitution. Arrest for trial is a proceeding which belongs to the judicial, not to the executive branch of the government; and the warrant of arrest is always preceded by evidence-ex parte to be sure, but still evidence-to wit: information on oath. Can the President of the United States order an arrest either by proclamation or by instructions to marshals? Would not such proclamation or instructions be, in effect, a warrant to arrest? It is very clear to me that they would ; and that either of them would be a violation of the sixth article of the amendments of the constitution of the United States, which provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizurcs, shall not be violated ; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. It was one of the strong grounds of objection to the celebrated alien law, that it gave the President power to arrest; "a power, says Judge Tucker, “which it was presumed did not exist either in the executive of the State or of the federal government.” (4th Tucker's Black., 290.)
Would not a better course be, to have an indictment submitted to the next grand jury for the circuit court of Georgia ; and, if found by them, to cause authenticated copies of it to be furnished to the several marshals and collectors of the United States, with instructions, if Wright should make his appearance anywhere within the United States, to cause him to be arrested according to law, with special reference, if necessary, to the sixth amendment to the constitution of the United States and the thirtythird section of the judiciary act, which points out the mode of arrest?
There is nothing in this suggestion which denies to the President the power of issuing his proclamation against an offender who has once been regularly arrested and has made his escape ; for the regularity of the arrest implies that the probable cause has been furnished on oath or affirmation according to the amendment of the constitution, and that the warrant of arrest has been duly issued and has had its effect.
I shall await your instructions on this subject; and have the honor to be, &c.,
WM. WIRT. To the PRESIDENT OF THE UNITED STATES.
EXECUTIVE POWER TO DISCHARGE PUBLIC DEBTORS. The President has no power to discharge public debtors imprisoned on mesne process; but
only debtors imprisoned on execution, at the same time requiring the judgment to remain good, to be satisfied out of any estate then, or afterwards, belonging to the debtor. OFFICE OF THE ATTORNEY GENERAL,
September 8, 1818. Str : I have examined the case of John Gates, jr., represented by his brother, Mr. Gerritt Gates, whose letter I return. It is unnecessary to say anything of the merits of the case, because I am satisfied that you have not the power to discharge the prisoner, admitting the case, upon its merits, to be a proper one for the exercise of such a power. The act of Congress which gives the President his only power to discharge public debtors, is the act of the 31 March, 1817, entitled “An act supplementary States.'»
to 'An act for the relief of persons imprisoned for debts due the United
This act expressly limits the power of the President to cases in which the person is imprisoned upon execution, and requires that the judgment which shall have been obtained shall remain good and sufficient in law, and may be satisfied out of any estate which may then, or at any time afterwards, belong to the debtor. Lest you should not have the act with you, I enclose a copy of it ; by which you will see that it is not applicable to the case of John Gates, against whom there has been yet no judgment, and who is imprisoned, not upon execution, but upon mesne process.
[WM. WIRT.) To the PRESIDENT OF THE UNITED STATES,
A vessel fitted out at Savannah with armament, munitions, and sea. stores, and afterwards
found with a commission from the republic of Venezuela to cruise against the subjects of the King of Spain, and having sailed on such a cruise, but under another name, seized at Savannah on the charge of having been fitted out in a port of the United States to cruise against the King of Spain, is a fit case for adjudication, and not one calling for the interference of the government.
OFFICE OF THE ATTORNEY GENERAL,
September 10, 1818. SIR: The case of the Corony, Captain Saunders, seized at Savannah on a charge of having been fitted out in a port of the United States to cruise against the King of Spain, with whom we are at peace, has been submitted by the Secretary of State for my opinion ; and, in his absence, I take the liberty of communicating the opinion directly to you.
Captain Saunders applies for an order to discharge his vessel from further prosecution, on the ground that she is a legitimate armed vessel, lawfully sailing under the flag of the republic of Venezuela, and regularly commissioned by Admiral Brion. Although both the statements and the documents turnished by Captain Saunders are entirely ex parte, yet, from his own showing, I consider it a fair case for adjudication ; for, in his letter to the Secretary of State, he admits that the Corony is the same vessel which, on the 1st day of April last, cleared out from the custom-house at Savannah, with the munitions of war then on board with which she was apprehended ; and by reference to the manifest which he encloses in his letter, in support, it is presumed, of this assertion,) it will be found that she then cleared out under the name of the Felix, having on board three cases of muskets, two four-pounder cannon with carriages, sixteen kegs of powder, and no other cargo, except sea stores. And he admits that, thus armed, she took a commission to cruise against the subjects of the King of Spain, and did sail upon such cruise. At this time the act“ to prevent citizens of the United States from privateering against nations in amity with, or against the citizens of, the United States," and the act passed the 3d March, 1817,“ more effectually to preserve the neutral reIations of the United States,” were both in force, the provisions of which are familiar to you ; and I therefore think it unnecessary to say more than that, in my opinion, the case of the Corony is a fit case for adjudication,
and by no means one which calls for the extraordinary interference of the government.
To enable you the more readily to test the accuracy of this opinion by the facts communicated by Captain Saunders, I enclose his letter to the Secretary of State, with the documents which that letter covered.
[WM. WIRT.] To the PRESIDENT OF THE UNITED STATES.
NEW TRIALS BEFORE COURTS-MARTIAL.
The President of the United States has the power to order a new trial before a court-martial
where, in his opinion, the court erred on the first trial in excluding proper testimony. The provision in the Articles of War that “no officer, &c., shall be tried a second time for the
same offence,” is borrowed from the common law, and is not held, in either civil or military tribunals, to preclude the accused from having a second trial on his own motion. The plea of autres foits acquit, or convict, is the privilege of the accused, which he may use or
waive at pleasure; if he does not choose to use it, courts will not take notice of it so as to
bar a trial It is error for a court-martial to refuse a second trial to the accused when the same has been ordered by the President.
OFFICE OF THE ATTORNEY GENERAL,
September 14, 1818. Sir: The Secretary of War has submitted to me, by your desire, the proceedings of a court-martial, held at Plattsburg, in the State of New York, on the 5th day of June last, in the case of Captain Nathaniel N. Hall, of the corps of artillery; in which case the court, under the opinion of the judge advocate, refused to arraign Captain Hall, on the ground that he had been previously tried by a court-martial on the same charge, and that a new trial was forbidden by the 87th article of war. The general order prefixed to this report shows that the sentence of the first court, which cashiered this officer, was disapproved by the President; and it appears by the proceedings that the new trial ordered, by a court composed of different members, was an act of mercy to the party accused, in consoniance with his wishes, and at his own desire. The grounds on which the new trial was ordered are also distinctly stated in the general order prefixed to the proceedings which have been handed to me. They were-1st, that the first court erred in refusing to admit testimony to prove the general character of Captain Hall; and, 2dly, in refusing to admit evidence to prove that a quarrel had taken place between the prisoner and the principal witness against him, on the night on which the offence is charged to have been committed. The question presented for my opinion is, whether a President of the United States has the right, under these circumstances, to order a new trial ?
It is a clear principle that the President has no powers except those which he derives from the constitution and laws of the United States; if the power in question, therefore, cannot be fairly educed from these sources, it does not exist at all.
By the constitution, the President is made commander-in-chief of the army and navy of the United States. But, in a government limited like ours, it would not be safe to draw from this provision inferential powers, by a forced analogy to other governments differently constituted. 'Let us draw from it, therefore, no other inference than that, under the constitution, the President is the national and proper depositary of the final appellate power, in all judicial matters touching the police of the army; but let us not claim this power for him, unless it has been communicated to him by some specific grant from Congress, the fountain of all law under the constitution. By the 14th section of the act of the 16th March, 1802, fixing the military peace establishment of the United States, it is provided that “the officers, non-commissioned officers, musicians, and privates of the said corps shall be governed by the rules and articles of war which have been established by the United States in Congress assembled, or by such rules and articles as may be hereafter established: provided, nevertheless, that the sentence of general courts martial, extending to the loss of life, the dismission of a commissioned officer, or which shall respect a general officer, shall, with the whole proceedings of such cases, respectively, be laid before the President of the United States, who is hereby authorized to direct the same to be carried into execution, or otherwise, as he shall judge proper.” The court, in this case, was a general court-martial; and its sentence one which extended to the dismission of a commissioned officer: it could not, therefore, according to this law, be carried into effect until the sentence, with the whole proceedings which led to it, should be laid before the President; who was authorized by the law either to direct it to be carried into execution, or otherwise, as he should judge proper. To show the value of this appellate power, according to the spirit of this nation from the period of its earliest struggles for liberty, it is not unworthy of remark, that, by the 18th section of the rules and articles of war, established by the continental Congress, it was provided that the continental general commanding in either of the American States for the time being shall have full power of appointing general courts-martial to be held, and of pardoning and mitigating any of the punishments ordered to be inflicted for any of the offences mentioned in the aforementioned rules and articles for the better government of the troops, ercept the punishment of offenders under the sentence of death by a general court-martial, which he may order to be suspended until the pleasure of Congress can be known; which suspension, with the proceedings of the court-martial, he shall immediately transmit to Congress for their determination. (1 Graydon's Digest, app. 156-'7.) On the 27th May, 1777, the whole appellate power was given to the general or commander-in chief, id. ib., confirmed by an order of 18th June, 1777. Some years after the close of the revolutionary war, (to wit, on the 31st May, 1786,) it was resolved by Congress, among other things, that “no sentence of a general court martial, in time of peace, extending to the loss of life, the dismission of a commissioned offi. cer, or which shall, either in time of peace or war, respect a general officer, shall be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before Congress for their confirmation or disapproval, and their orders in the same.” (1 Graydon, app. 158-'9.) The question may as well be asked here as elsewhere, whether the appellate power of the continental Congress, in the resolution last quoted, was limited to the confirmation or disapproval of the sentence of the court-martial on which they were called to act? Had they not the power, not merely of disapproving that sentence, but of ordering a new trial? if they were so limited, why did not the resolution stop at giving them the power to confirm or disapprove ? Why the additional words, after the disapproval, "and their orders in the