tial to the peace and stability of the republic-of the subjection of the military to the civil authority. Cases may arise which will not admit of a course so circuitous; but the President will always have it in his power to meet such cases by a prompt exercise of his authority. On the other hand, Iit is within the compass of human possibility, at least, for the Governor and one or more justices of the peace of a State to be involved in local factions, and to conspire to demand of the President the surrender of a military officer whom it might be desirable to them to sacrifice, however innocent, to their unhallowed purposes. In such a case, it would become the duty of the President to refuse the call, though made by the Governor of a State, on an affidavit before a justice of the guilt of the accused. I am not proposing, therefore, a rule which is to be inflexible in all cases, but one which will be found of very general convenience, and subject, in its prudent application, to very few exceptions. The present case, according to the documents furnished to me, is not such an exception. You will observe that I am now speaking solely of an original demand, made directly upon the President; for which sort of demand neither the rules and articles of war nof any act of Congress have made provision, and for which sort of demand the President must prescribe a rule to himself. It is for this class of cases that I propose the rule just stated; but such demands, I apprehend, must rarely occur, because the provision already made by the rules and articles of war is so ample, that, although it does not embrace the case of au original demand upon the President, yet, with the aid of an appeal to the President, it will cover almost every case that can occur. Thus the 32d article authorized and required every officer commanding in quarters, garrisons, or on the march, to redress all abuses or disorders which may be committed by any officer or soldier under his command, to the disquieting of the citizens of the United States. And the 33d article (under which this demand is made) provides that, "when any commissioned officer or soldier shall be accused of a capital crime, or of having used violence or committed any offence against the persons or property of any citizen of any of the United States, such as is punishable by the known laws of the land, the commanding officer and officers of every regiment, troop, or company to which the person or persons so accused shall belong, are hereby required, upon application duly made by or in behalf of the party or parties injured, to use their utmost endeavors to deliver over such accused person or persons to the civil magistrate, and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring him or them to trial. If any commanding officer or officers shall wilfully neglect, or shall refuse, upon the application aforesaid, to deliver over such accused person or persons to the civil magistrates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or officers so offending shall be cashiered." You perceive, by this full quotation of the article, that the duties which it prescribes are confined to the commanding officers of regiments, &c., and under a penalty which proves the article.entirely inapplicable to the President; while, at the same time, the provisions of the article are so ample, that, while the commanding officers of regiments, &c., are made to do their duty, appeal to your department will always secure,) it seems difficult to imagine a case in which an original demand upon the President will become necessary. Is the demand made by Mr. Jeffers on your department an original demand? or is it an appeal from the refusal of the commanding officers, &c., to deliver up the parties accused? So far as it concerns Lieutenant G. W. Gardner, the commandant of the fort, it is an original de mand, and, as such, has been answered by what has been already said. So far as it concerns Lieutenants Strong and Farley, it may be considered as an appeal from the refusal of Lieutenant Gardner to deliver those officers on the demand made in writing by Mr. Thompson, judge and justice of the peace, on the 10th day of July, 1825, a copy of which is before me. Considering this application as such appeal, it is proper to inquire whether Lieutenant Gardner violated this article in refusing to yield to such demand. You will discover that the case in which the article raises this duty on the commanding officers, &c., is when the person called for has been accused of some offence such as is "punishable by the known laws of the land." The commanding officer owes a duty to the men under his command-he owes them the duty of protection, so long as they continue in the faithful discharge of their duty. This duty is first in point of time, and highest in point of obligation. This 33d article gives him no authority to withdraw that protection, and deliver over his men to others, except in the case which it describes - where they are accused of such an offence as is punishable by the known laws of the land. To justify him in delivering them up, he must see that the case described by the article has arisen. He is required by his duty to exercise his judgment upon the case. It is not enough to tell him that some offence has been committed; he must know what the specific offence is, in order that he may see whether it is an offence "punishable by the known laws of the land." The application, according to the article, must be duly made to him; and, in my opinion, no application is duly made, which does not state the specific offence, so as to enable the commanding officer to see distinctly that the case contemplated by the article has arisen. In the present instance, the demand made by Mr. Thompson did not state the specific offence. It is addressed to the commandant of Fort Delaware, Lieutenant G. W. Gardner; and then states that "Lieutenants Joseph Strong and John Farley are charged before me, on oath, with having violated the known laws of the land, and especially of the State of New Jersey: you are therefore requested," &c. Mr. Thompson ought to have furnished the commanding officer with the specific charge, and with the name of the injured party; a copy of the affidavit ought to have accom panied the demand; and then, if as special as an affidavit ought to be to warrant an arrest, it would have given all the information that was neces sary on the occasion. On such a demand as this before me, I am of the opinion that the commanding officer would have acted unjustifiably in delivering the men; and hence, that there is nothing to punish or to censure in his refusal. I have the honor to remain, sir, very respectfully, your obedient servant, WM. WIRT. To the SECRETARY OF WAR. Office of the Attorney General, SIR: The case referred to me by your letter of the 4th instant from the General Land Office, has had my earliest attention; and, after a careful examination of the acts of Congress on the subject, I am of the opinion that the practice of suspending patents, stated by the Commissioner, is perfectly correct. In the particular case I can see no benefit which can arise by issuing the patent immediately, and no injury which can arise to the individual by withholding it; it may eventually prove to be a needless expense and trouble, and may moreover create improper embarrassment to the petitioner before the district court. The claim on which Mr. Bates demands a patent is one of those which are known to our laws as New Madrid claims. By the act of the 17th February, 1815," for the relief of the inhabitants of the county of New Madrid, in the Missouri Territory, who suffered by earthquakes," it is provided that those sufferers "might locate an equal quantity of land with that which they had lost, on any of the public lands of the said Territory, (Missouri,) the sale of which is authorized by law." In order to ascertain what lands were then authorized by law, we must look to the act of the 3d March, 1811, providing for the final adjustment of the claims to land, &c.; the 10th section of which describes the lands which the President was authorized to sell, and by the proviso to which section it is expressly declared that, till the decision of Congress thereon, no tract of land shall be offered for sale, the claim to which has been in due time and according to law presented to the recorder of land titles in the district of Louisiana, and filed in his office, for the purpose of being investigated by the commissioners appointed for ascertaining the rights of persons claiming lands in the Territory of Louisiana. It is scarcely necessary to remind you that this Territory is the same which by act of Congress in the following year (June 1, 1812) took the name of Missouri. Again: by the 3d section of the act of 17th February, 1818, entitled "An act making provision for the establishment of additional land offices in the Territory of Missouri," it is declared that, whenever a land office shall have been established in any of the districts aforesaid, the President of the United States shall be authorized to direct a sale of the public lands therein, with the same reservations and exceptions as was provided for the sale of public lands in the Territory of Louisiana, by the 10th section of the act of the 3d March, 1811, which we have just examined. So that the reservation of lands to which claims had been filed, as set forth in the proviso of that section, became permanent; and, being excepted from the sale of the public lands, did not fall within the description of those lands on which the New Madrid sufferers were authorized to make their locations. Among the documents handed to me on this subject, is a letter from the late Secretary of the Treasury (Mr. Crawford) to the Commissioner of the Land Office, (Mr. Meigs,) bearing date on the 10th June, 1818, in which I perceive that he takes the same view of this exception, and gives the necessary orders to exempt the lands so claimed from public sale. The decision of Congress-until which, lands claimed as above were to be reserved from sale, and consequently from location by the New Madrid suffererswas not finally taken until the 26th May, 1824; when, by the act of that date, enabling the claimants to land within the limits of the State of Missouri and Territory of Arkansas to institute proceedings to try the validity of their claims, the claimants were authorized to file petitions in the district court of the United States for the State of Missouri, for the trial of their claims; and by this law it is expressly provided, on the one hand, that when any claim has been decided against the claimant, the land shall belong to the United States; and on the other, that where the decision shall be in favor of the claimant, and the land shall have been previously sold to another person by the United States, the party interested may reimburse himself by a location elsewhere. Now, the claim which Mr. Bates represents is a New Madrid claim, which is stated to have been improvidently located on some of this interdicted land; with regard to which, the claimant has filed his petition before the district court, aud the case is still sub judice. Mr. Bates demands the patent, because, however these facts may be, he has produced the patent cer tificate; and the issuing of a patent is an act so purely ministerial, that the officer is bound to issue it, although he may see distinctly that it is about to issue for lands not at all subject to the claim. That is to say, the President of the United States, whose peculiar constitutional function it is to see that the laws are properly executed, is himself to become instru mental in a conscious breach of these laws, by signing the patent, because an inferior officer has ignorantly taken a false step in giving what Mr. Bates calls a patent certificate. I am not of this opinion. On the contrary, I think it most proper that all executive action on the subject should cease, until the judiciary shall have decided on the claims. The documents are returned. I have the honor to remain, sir, very respectfully, your obedient servant, WM. WIRT. OFFICE OF THE ATTORNEY General, SIR In answer to the question, to what pay Commodore Porter is entitled during the term of his suspension under the late sentence of the court martial? I have to answer, that the provisions of the act of the 21st of April, 1806, touching this subject, have not been altered; that, by this act, it is provided that the officers retained in service shall receive no more than half their monthly pay when they shall not be under orders for actual setvice. Is Commodore Porter under orders for actual service? If he is not, he is entitled only to half-pay: and that he is not under orders for actual service, is apparent, from the sentence which suspended him from all setvice for six months. This is nothing more than the repetition of an opinion which I had the honor to give to your department on the 21st September, 1821, and which I see no reason to change. I have the honor to remain, &c. &c. To the SECRETARY OF THe Navy. WM. WIRT. OFFICE OF THE ATTORNEY General, SIR: I understand the case stated by Messrs. Hammond and Newman to be briefly this: In May, 1823, the schooner Adonis was despatched by them for the port of Baltimore, under the command of Captain Leonard Sistare, of New York, with a cargo of leaf-tobacco, in bales, with orders to the captain to proceed to the Pacific ocean, to make sale of the vessel and cargo, and remit the proceeds to the owners; the whole being consigned to the captain, with a power to sell the vessel as well as the cargo; that Captain Sistare did accordingly proceed to the Pacific, and did sell both vessel and cargo, according to the power and the instructions given him; but has failed to remit the proceeds, and has, it is believed, appropriated them to himself. On this case, the questions which you propound to me are 1. Is Captain Sistare guilty of piracy under our laws? 2. Do the facts constitute a felonious and piratical running away with the vessel ? 3. Has the Government a right to order Captain Hull to seize and send Sistare to the United States, to be tried for his conduct? 4. May the instructions in the enclosed letter to Captain Hull be safely and legally given? The first and second questions may be considered together; because, if Sistare has been guilty of piracy at all, it is of that statutory kind which consists in running away with the vessel. The act of the 30th April, 1790, declares, "that if any captain or mariner of any ship or other vessel shall piratically and feloniously run away with such ship or vessel, or any goods or merchandise to the value of fifty dollars, &c., every such offender shall be deemed, taken, and adjudged to be a pirate and a felon, and, being thereof convicted, shall suffer death." The acts necessary to constitute the crime within this statute are, that the vessel should be run away with by a captain or a mariner of the vessel; and that this should be done piratically and feloniously. (The United States against Tully et al., 1 Gallison, 253.) Was this vessel run away with? I apprehend, that if the captain carried her to no place to which he was not authorized by the owners to carry her, if he did nothing that he was not authorized by the owners to do with the vessel-she was not run away with at all. Now, what was Captain Sistare authorized to do with this vessel and cargo? He was authorized, according to the case, to carry them into the Pacific ocean, and to sell them there, without any designation of any particular port or market at which they should be sold. The charter was as broad as the whole Pacific ocean. The act to be done was to sell the vessel and cargo, and this without limitation as to time or price. What did Captain Sistare do? He carried the vessel and cargo into the Pacific ocean, and he sold them there; that is to say, he did with them exactly what he was authorized and required by the owners to do with them, and at the place at which he was authorized and required to do it. Thus, from his first connexion with this vessel and cargo, to his final parting with them, every thing he did was in strict conformity with the authority, orders, and nstructions of the owners. His offence begins after his final separation rom the vessel and cargo; it begins with his failure to remit the proceeds to his owners. This, to be sure, was a breach of trust; but it is not that specific breach of trust to which the law has attached the name and the penalty of piracy; it was not a piratical and felonious running away with he vessel and cargo. Up to the time of receiving the price of the vessel nd cargo in the Pacific, every thing had been done in conformity with he consent and orders of the owners; and nothing done with their consent and orders could have been criminal with regard to them. Upon the whole, cannot conceive that the mere withholding the proceeds, which had been ightfully received by Sistare, will be interpreted by our courts as constiuting a piratical and felonious running away with the vessel and cargo; and I consequently answer the first and second questions in the negative. |