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5th. The copy of another record in chancery, in the second case, comprising a bill for injunction, answers, and documents.

The object of the application I understand to be, that I shall instruct and direct the district attorney as to the answers which he shall give to these multifarious pleas and demurrers; that is, that I shall either prepare the pleadings for him, or give specific instructions as to their substance, with regard to each separate plea and demurrer; and, also, indicate the course which should be pursued with regard to the cases in chancery.

I regret extremely that I am not sufficiently at leisure to attend to these subjects; because, if I were so, I would cheerfully do what is asked of me, without regard to the unusual complication of the cases, or the labor they would necessarily impose upon me. I should do it, however, as a private member of the profession of law, and not as the Attorney General of the United States, for the augmentation of whose duties, already sufficiently laborious, I should not feel myself at liberty to set a precedent by the voluntary assumption of others, which I respectfully conceive do not belong to his office.

What is asked of me is, to instruct and direct the district attorney in the discharge of his duties. If I am bound to perform this duty with regard to this district attorney, I am equally bound to give the like instruction and direction to all the other district attorneys in the United States, in all other cases, in which, for their own ease, they may call for such aid; and it is but to state such a proposition, and look to the number of district attorneys in the United States, to show the impossibility of performing such duties. It is, in effect, calling upon the Attorney General to perform, not only his own duties, but those also of all the district attorneys in the Union, whenever the latter may choose to call upon him to do so. Lex non requirit impossibilia; and it would be strange, indeed, if there were any law which imposed upon the Attorney General the impossibilities now in question.

That there is no such law, is very manifest. The act of Congress sepa. rates the duties of these officers by a perfectly clear and distinct line of de. marcation. With regard to district attorneys, it provides that “there shall be appointed in each district a meet person, learned in the law, to act as attorney for the United States in such district, who shall be sworn," &c., " whose duty it shall be to prosecute in such district all delinquents for crimes,” &c.," and all civil actions in which the United States shall be concerned, except before the Supreme Court, in thc district in which that court shall be holden.

As to the Attorney General, the provision is—and there shall be appointed a meet person, learned in the law, to act as Attorney General for the United States, who shall be sworn," &c., 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 opinion upon questions of law, when required by the President of the United States, or when required by the heads of any of the departments touching any matters that may concern their departmen's.

You may observe that it is not his duty to give his advice and opinion to the district attorneys touching any matters that may concern their de. partments. Yet this is the thing which is here proposed; for the application having passed through one of the departments does not change its essential character; it is still an application from the district attorney for advice and instruction touching his own peculiar and appropriate duties. It is made the duty of the Attorney General to give his advice and opinion on questions of law, when requested by the heads of any of the departments, touching any matters that may concern their departments; that is to say, that when, in the course of discharging the duties of their departmenis, a question of law shall arise, whose solution is a prerequisite to the discharge of those duties, the head of any department has a right to request the opinion of the Attorney General on such question of law, and he is bound by his oath to answer it. Now, if it be one of the duties of the Secretary of the Treasury to instruct the district attorneys in the discharge of duties merely professional, then this case is properly referred to me, and I am bound to give the opinion. But I apprehend no such duty is devolved by our laws on the head of the Treasury Department. The 'Treasury Department sends to the district attorneys all orders for suits, and puts them in possession of all the facts and evidence necessary for the prosecution of those suits. But here, I apprehend, the duties of the department stop; and it is no part of those duties to prescribe to the district attorney the form of the action, or the form of the pleadings: these are referred exclusively to his own learning; and it is for this reason that he is required to be a person learned in the law. The Secretary of the Treasury is not necessarily a lawyer by profession. One very eminent gentleman who has held the office, we know was not so. It could never have been considered, therefore, as among the duties of that officer, that he should instruct and direct the district attorneys as to the mere technicalities of their profession. But we are not driven to inference for the ascertainment of the duties of the Secretary of the Treasury. His duties are prescribed by law, and this duty is not among them. The Comptroller of the Treasury was charged with the collection of debts due to the United States; and the law stops with making it his duty to direct prosecutions for all delinquencies of offi. cers of the revenue, and for debts that are or shall be due to the United States; leaving the form of the prosecution, and all the pleadings connected with it, to the care of the law officer intrusted with that peculiar duty. The Secretary of the Treasury is, indeed, required to superintend the collection of the public revenue. How to superintend? Certainly, 10 see that each officer concerned in the collection shall do his duty with vigilance, industry, and integrity; but not to descend to the details of law pleadings in all the courts in the Union, and to dictate to the district attorneys the forms of actions and all the varieties of special pleadings to which such actions may lead. This would be to impose on the Secretary of the Treasury impracticable duties, to confound and amalgamate duties which are separated by our laws, and to shift to the Secretary of the Treasury the responsibilities which properly belong to the district attorneys.

The act of the 15th May, 1820, providing for the better organization of the Treasury Department, creates a new officer, called the agent of the treasury. It directs that it shall be the duty of such officer of the Treasury Department, as the President shall, from time to time, designate as the agent of the Treasury Department, to direct and superintend all orders, suits, and proceedings in law or equity, for the recovery of money, chattels, &c., in the name of the United States; and it directs the district attorneys to conform to such directions and instructions as shall, from time to time, be given them by such agent.

What kind of direction or superintendence was intended by this law to be thrown on the agent of the treasury? To what kind of directions and instructions from such agent is it the intention of this law that the district atiorneys shall conform ? Can it be conceived to have been the intention of the law to throw on the agent the duty of directing and instructing the district attorney as to the forms of the actions and the forms of the special pleadings? Who are the officers in the Treasury Department to whose designation by the President this law looked? Are they lawyers by pro fession? We know that they are not. To what kind of direction and instruction, then, would the law have looked as being made the duty of the agent on the one hand to give, or the duty of the district attorneys on the other to obey, but directions and instructions when, and against whom, and for what amount, to institute suits; when to press the collection, and when to indulge; when, and under what circumstances of additional secuo rity, to renew the debts; what substitution, what commutations, what par. tial payments, what compromises to accept; when to acquiesce in the decisions of the courts below; and when to appeal, &c.; always leaving to the learning of the law officer the direction of all measures merely technical and professional ?

This is my construction of the act organizing the Treasury Department, and of the act of the session of 1820, creating this agency for the collection of debts. In neither of them can I see that it is made one of the duties of the Secretary of Treasury to instruct the district attorneys in the performance of duties merely and strictly technical and professional. The solution of these questions, then, is not necessary to the discharge of any duty properly belonging to the Treasury Department; and they are, therefore, no questions of law on which it is made the duty of the Attorney General to give his opinion.

It is true, as Mr. Pleasonton suggests, that these cases may come before the Supreme Court; and it is true, also, that when they do come, then it will be the duty of the Attorney General to attend to them; but not until they do come there.

The same thing may be said of every case of the United States now depending before any district or circuit court in the Union. They may all come before the Supreme Court; and, because they may do so, it be comes the duty of the Attorney General, according to this argument, to anticipate his duties, and enter upon the direction of all these suits while they are yet depending in the inferior courts. The thing is impossible; and fortunately the law does not require it.

As I am not only willing, but desirous, to perform all the duties which properly belong to my office according to the best of my judgment; and, on the other hand, very unwilling to create a precedent which shall en cumber this burdensome office with duties foreign to it, and which seem to me to surpass the power of any human being to perform; and as I have been conducted by the best lights of my own understanding to the con. clusion that these duties are, under our laws, foreign to the office of the Attorney General, I shall hold myself much obliged to you, if you differ with me in this opinion, to make any suggestions which you think lead fairly to the opposite result. I will weigh them with all the candor of which I am capable, and cheerfully and respectfully reconsider the opinion now expressed. I have the honor to remain, with great respect, your obedient servant,



Appeals and writs of error to the Supreme Court of the United States are founded only upon

errors in points of law properly raised in the courts below for decision.


April 12, 1823. Sır: My official engagements during the Supreme Court, and since, have prevented earlier attention to your communication concerning the cases of the United States vs. James Johnson, and Ward and Johnson, before the circuit court of Kentucky.

The question which you propound for my opinion is, whether there be any ground in those proceedings on which the cases can be carried to the Supreme Court? As I am not furnished with copies of the record in those cases, I must, of necessity, rely on the report of the district attorney which accompanied your letter. According to this report, these were cases at common law, in which all the questions of law and fact were submitted to the jury, and their verdict is against the United States. The district attorney states expressly that no question of law was reserved for appeal or writ of error. Now, as appeals and writs of error to carry causes to the Supreme Court of the United States can be founded only on errors in point of law, and as the record in this case exhibits no such error, because no question of law was raised for the decision of the court, there is no possible ground on which these cases can be carried before the Supreme Court. I remain, sir, very respectfully, your obedient servant,


Treasury Department.


No authority has been given to the President to cause any of the public lots to be filled up, or

the stagnant waters thereon to be removed. The Corporation of the city of Washington has power to establish a board of health, to make

regulations for the preservation of health, to open all necessary drains, and to do every act which the health of the city may require, and to lay taxes, &c., for the purpose of defraying

the expenses. Besides, the act of May 7, 1822, specially authorized the draining and filling of the low grounds

near Tiber creek and the canal, and appropriated funds for that purpose. The deed from the mayor and commissioner of certain rooms in the City Hall contains unauthorized provisions. The powers of the grantors should be enlarged, and a new deed given.


May 31, 1823. Sir: I have, according to your request, examined the several acts of Congress involving the powers of the President relative to the city and the public property in it; and I cannot discover that any authority has been given to him to fill up the public lots, or any of them, or to remove stag. nant water, and thereby prevent disease. The corporation is vested, by their act of incorporation, with express power to establish a board of health, with competent authority to enforce its regulations; to establish such other regulations as may be necessary to prevent the introduction of contagious disease, and for the preservation of the health of the city; to prevent and remove nuisances; to open all necessary drains and sewers, short, to do any and every thing which the health of the city may require: powers amply sufficient to effect every purpose which the present application can have in view. To provide funds for these purposes, the corporation is authorized to lay and collect taxes upon the real and personal property within the district; and to draw lotteries to carry into effect any important improvement which their ordinary revenue will not accom. plish. Besides these powers given by their charter, there was a special act of May 7, 1822, (chap. 96,) directed to the purpose of authorizing and enabling the corporation to drain and dry the low grounds lying on the borders of the Tiber creek, and filling up the low grounds on the borders of the canal, for which purpose a rich provision of funds was made by that act; whereas I cannot discover that either authority or funds have been given to the President for either of these purposes.

With respect to the other subject of your note-the sufficiency of the deed from the mayor and commissioner appointed to superintend the erection of the city hall, to the United States, for certain rooms in that building: the act of the corporate body which authorizes those officers to sell and convey, limits their power expressly to the sale and conveyance of one room for court and six rooms for the marshal, clerk, and jurors, and the books, papers and records of the court; whereas this deed, besides these seven rooms, professes to grant to the United States the free and full use of so much of the basement story of said hall, under the said court-room, as shall be necessary for the safe and convenient keeping of fuel for the use of the court and offices, &c. This part of the deed, though for a subject manifestly necessary to the comfortable enjoyment of the rooms conveyed, exceeds the power of the grantors, under the law of the corporation which confers their powers. It will be necessary either to enlarge their powers, that they may give a new deed, or that the cor. poration should ratify this deed as it stands. The former course would be preferable, in order that the grant of a place of deposite for the fuel may be to the exclusive use of the court room and offices.

I have the honor to remain, sir, very respectfully, your obedient ser





A prior lien on a policy for the premium of an insurance is overreached by the right of prefer

ence of the United States, even though the preference be founded on a subsequent act of

insolvency. See the case of Thelluson and Smith, reported in 2 Wheaton, deciding that the United States

have preference over a prior judgmeni on the lands of a debtor in case of subsequent insolvency. OFFICE OF THE ATTORNEY GENERAL,

June 2, 1823. Sir: Your reference of Mr. Pearce's claim found me in Baltimore, where I had an opportunity of informing myself more fully of the circum

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