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but the commissions of all the heads of departments, and of every officer of the army and navy, would necessarily be vacated on the occurrence of this event. Nay, if the power of the President does not extend, in the grant of a commission during pleasure, to the appointment of an officer whose official functions shall continue after the death, resignation, removal, or cessation of the official term of the President, the commissions actually issued are invalid, for they are "during the pleasure of the President for the time being." This form of issuing the commission serves to show the practical interpretation of this doctrine, which has prevailed since the foundation of this Government; while, if the opinion which I am contesting be correct, it could not, in any degree, prevent the operation of the principle. If, by law, an office held during the pleasure of the President terminates with his death, resignation, &c., the form which he may give to the commission cannot affect the question. He cannot, by an executive act, change the tenure of office which is defined by law.

Again if this doctrine be true, the offices of all the clerks in the different executive departments became vacated on the 3d of March, 1829. These officers held their offices at the pleasure of their respective chiefs; and since the several incumbents resigned on that day, it will follow that there is not even now any legal clerk in either of these departments, except those who have been appointed by the present incumbents.

My view of this subject is this: When an office is held during the pleasure of any designated officer, it is at the pleasure of the officer, and not of the individual; and to determine that office otherwise than by the act of the immediate incumbent, there must be some official act indicative of the will of the officer at whose pleasure it is held. If he ceases his official functions, without having done any act indicative of his will, his appointee must necessarily hold over until a successor is appointed, who is vested with a like discretion.

Such seems to me to be the manifest intention of the constitution and laws which relate to this question. With the exception to which I have referred, such I believe to have been its practical and uniform interpretaion. I cannot conceive that this construction of the tenure can be productive of any embarrassment, since the new incumbent may immediately, on his entry into office, exercise his right of removal and substitution; while the opposite interpretation seems to me to be full of difficulties, and to result from the application of a principle of the common law which does not belong to our federal institutions, and is, in this instance at least, hostile to their spirit.

Nor do I think that the provision which is made by the revenue law, for the continuance of the functions of the deputy collector after the death or disability of the collector, is sufficient to sustain the decision in the case of the United States vs. Wood. The argument is founded upon the maxim expressio unius est exclusio alterius. It asserts that the fact of provision having been made for the continuance of the deputy collector in office, is proof that, without such provision, his functions would have ceased; and that no such provision having been made in the case of the other subordinates of the custom-house, their offices must necessarily determine on the occurrence of the prescribed contingency. But to maintain this argument, it is necessary to show that the analogy between these subordinate officers is complete. And herein, as I respectfully conceive, the error lies. The deputy, (as his name imports, and as it is expressly laid down by law

writers,) exercises his office in right of another. He is, as they express it, the shadow of his principal-having no authority distinct from him; nor act otherwise than in his name; nor to perforin any other duties, but such as the collector himself may perform. These things cannot be affirmed of the other subordinates. The duties of the inspector, for example, are pre scribed by law, and to be performed by him alone. They are not the duties of another, which he performs in right of, and by deputation from, that other. But though he holds his office at the pleasure of the collector, so long as he continues in office, the duties which he performs are emphatically his own, specified by law, performed by him in his own right, under the authority of the law, and incapable of being performed by another. There is, then, an entire want of analogy between these offices, for all the purposes of this inquiry; and they are not, therefore, necessarily liable to the application of the same rule.

It is, perhaps, however, my duty to suggest to you that questions of this kind will most generally occur in criminal cases, in which there is no provision for bringing the point before the Supreme Court, but on a division of opinion between the judges; and that the subject may, therefore, be for a long time embarrassed by the conflicting opinions of the circuit courts. It might, for this reason, be advisable, at a convenient time, to obtain a legis lative enactment, which would relieve the subject from controversy. JN. MACPHERSON BERRIEN.

To the SECRETARY OF THE TREASURY.

ATTORNEY GENERAL'S OFFICE,
March 2, 1831.

SIR: I have examined the record of the trial of John H. Clark, and the accompanying papers, which you have done me the honor to refer to me. In the opinion which I feel myself constrained to give, I confine my view to one only of the several objections which have been taken to the proceedings on this trial; because that seems to me to be decisive, and to furnish in itself a proper and safe ground for determination.

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One of the officers who sat on this trial-one of the five officers by whom the sentence was pronounced-was absent from the court several days du ring the trial, and during the examination of witnesses. The record of the examination of those witnesses was read to him, and his judgment was con sequently founded upon the testimony of witnesses who had not been examined in his presence. If that officer was disqualified to sit in judgment upon the accused, there was no competent tribunal to award sentence against him: for only five officers (of whom the officer in question was one) concurred in that sentence; and this is the smallest number which the law allows.

I am of opinion that this officer was disqualified to pronounce a judg ment in this case. In the common-law courts, it is now well settled, that i a juror be taken ili during the trial, it is necessary to discharge the jury, to summon a new panel, (of whom the remaining eleven may constitute a part) and to recommence the whole trial, without regard to the former examination of witnesses. The object of this is to give to the new juror an oppor annity of hearing the whole testimony from the mouths of the witnesses.

The principle which governs this practice has been adopted in courts nartial. (Houghs' Practice C. M., 666.) In the case there reported, the commanding general says: "An irregularity having occurred in the course of this trial, I cannot confirm the proceedings of the court. One of the members, who was taken sick, appears to have absented himself, and aferwards to have resumed his seat, when the proceedings which had been recorded in his absence were read over. This mode of proceeding is irreg lar; as all the witnesses should be sworn, and give their evidence in the presence of the several members who compose the court. I therefore direct the prisoner to be released from his arrest, and to return to his duty." The importance of preserving this principle is obvious. The rule that witnesses should be examined in the presence of the judge, is one which cannot be safely departed from. The judgment which we form upon tesimony is greatly dependent upon the conduct of the witness during the xamination, and upon the manner in which that testimony is delivered. t is the right of an accused person that the evidence in his case should he iven in the presence of all his judges; and it seems to me to be much ore important to secure the correct administration of public justice in this egard, than to enforce punishment in any particular cases.

I am, therefore, of opinion that the sentence in this case was illegal and oid, and that the order founded upon it ought to be rescinded. The acused is entitled to be restored to his rights, as if such sentence had not een pronounced or approved. As, however, he has under that order ap. oving the sentence been dismissed from the service, and as it was comtent to the President to perform this act independently of the sentence, it ill be necessary to nominate him to the Senate, with the condition that e shall take rank from the date of his former commission.

JN. MACPHERSON BERRIEN.

To the PRESIDENT OF THE UNITED STATES.

ATTORNEY GENERAL'S OFFICE,

March 19, 1831.

SIR: In answer to the inquiry which you have proposed to me, relative the nomination of Lieutenant Thomas M. Newell for promotion, I have state to you that, in my opinion, Lieutenant Newell is entitled to take k in the list of masters commandant next after Lieutenant McCauley. The nomination was to take rank "next after John H. Bell." As this icer was not promoted, the person next in succession to him must, of urse, take the position which he, if promoted, would have occupied. If her of the persons nominated had died in the interval between the nomition and confirmation, the same result would have followed. This must considered to have been clearly the intent of the President, who nomited, and of the Senate, in confirming the appointments.

It seems to me also to be the strict legal effect of the nomination and conmation. The President, nominated certain persons for promotion in a tain specified order. In that nomination, Lieutenant Vallette immediely succeeded Lieutenant John H. Bell. When, subsequently, with refence to that nomination, the President nominated Lieutenant Newell to ke rank next after Lieutenant John H. Bell, he of course nominated him

to take rank before Lieutenant Vallette, who immediately followed Lieterant John H. Bell; and when the Senate confirmed this nomination, the did it with reference to the order prescribed in the previous nomination." which Lieutenant Newell was placed after Lieutenant John H. Bell and before Lieutenant Vallette. It was the intention both of the President and Senate that Lieutenant Newell should take rank in like manner as be would have done if his name had been inserted in the original nominationimmediately after that of Lieutenant John H. Bell. The same difficulty would, therefore, exist in finding the place of Lieutenant Vallette, as in de termining that of Lieutenant Newell; for these officers were originally nominated for promotion in a prescribed order, by which Lieutenant Va lette was made to succeed Lieutenant John H. Bell. The new nomination did no more than give to Lieutenant Newell the place which had been pr viously occupied by Lieutenant Vallette, while he was, by force of this l ter nomination, placed one step lower on the list.

JN. MACPHERSON BERRIEN

To the SECRETARY OF THE NAVY.

ATTORNEY GENERAL'S OFFICE,

March 21, 1831.

SIR: In answer to the first inquiry contained in your note of the 4th stant, I have to state to you my opinion-that the bondsmen of a marsha whose official functions had ceased from whatever cause, would not be ble for any defalcation on his part to pay the several assistants in the the census the amount due to each out of the funds to be transmitted t him by your department after his removal from office.

The duties imposed upon the marshal by the act to provide for taki the fifth census, are so imposed upon him in his official character, and. stituting a portion of his official functions, fall within the scope of the b gation of his sureties for the faithful discharge of the duties of his When he ceases to fill that office, his obligation, as well as his pre perform these duties, is at an end; and when the vacancy is filled, bare transferred to the new incumbent. The only powers retained by a mar after his removal from office, or after the term for which he was appo has expired, are to execute such precepts as may be in his hands, and retain such prisoners as may be in his custody, at the time of such remors from office, or expiration of the term for which he was appointed. It seem to follow, that money transmitted to him by your department, for what ever purpose, after that period, would come to his hands as an individus and not as an officer; and consequently that his suretics would not be lia for his misapplication of it.

I apprehend, in answer to your second inquiry, that the assistants ha a perfect claim on the Government for the payment of the compensation which they are entitled under the law, so soon as they have complied w its requisitions. The mode of payment through the marshal, prescribed the instructions, is for the convenience of the parties; but that officer is t agent of the Government, and his misapplication of the funds intrusted him cannot impair the right of the assistants to receive the amounts which they are entitled.

To the SECRETARY OF STATE.

JN. MACPHERSON BERRIEN.

ATTORNEY GENERAL'S OFFICE,

March 21, 1831.

SIR: I have considered the question you have proposed to me, which is

Whether, under the several acts of the 2d March, 1799, "regulating the collection of duties on imports and tonnage ;" and that of the 5th January, 1805,"concerning drawbacks on goods, wares, and merchandise;" goods may be exported for the benefit of drawback to any foreign port or place situated to the westward or southward of Louisiana, if such port or place be in the dominions of a foreign state immediately adjoining to the United States?

I cannot doubt that this question must be answered affirmatively. The first-mentioned act provides for the allowance of drawback, on the conditions therein specified, on goods "exported to any foreign place, other than the dominion of a foreign state immediately adjoining the United States." This provision results from a policy which is, without doubt, in general a afe one, and which has for its object to prevent the clandestine reintroducion of goods into the United States on which the benefit of drawback has een allowed. But, for reasons which must have seemed sufficient to Congress, they have, by the act last referred to, excepted from the operation of his rule, the ports or places "situated to the westward or southward of Louisiana."

That act provides that any goods which shall be exported from the Inited States, or the district of Mississippi, in the manner prescribed by law, > any foreign port or place situated to the westward or southward of Louisiana, shall be deemed and taken to be entitled to such drawback of Juties as would be allowable therein when exported to any other foreign ort or place; any thing in the act entitled" An act to regulate the collecon of duties on imports and tonnage," to the contrary notwithstanding. I can scarcely conceive any language better calculated to express the eaning of the Legislature. The words "any foreign port or place situed to the westward or southward of Louisiana," necessarily include those hich are adjoining to the United States in that quarter; while the clause non obstante with which the section concludes, points directly to the e-existing prohibition in the act of 1799, and repeals it.

JN. MACPHERSON BERRIEN.

To the SECRETARY OF THE TREASURY.

ATTORNEY GENERAL'S OFFICE,
March 22, 1831.

SIR: I have considered the question proposed in relation to the right of e consul of the district of Alicante and Carthagena to retain three onths' extra wages, in the case of the brig Pamela, under the circumances stated in the letter of the consul; and am of opinion that no such ght exists.

The cases specified in the third section of the act of 1803, in which such tainer is authorized, are those where the ship or vessel is "sold in a reign country, and her company discharged; or when a seaman or mane, a citizen of the United States, shall, with his own consent, be dismarged in a foreign country."

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