That a public vessel of the United States has the right, on the high seas, to detain a merchant vessel of the United States, and to take possession of it, and retain that possession until the government can act upon the subject, where there is just cause to believe that such merchant vessel is engaged in an illicit trade forbidden by the laws of Congress, I presume no doubt can be entertained. In this case, it appears that Captain Howell, commander of the brig "Thomas, of Havana," entered the port of Havana, and immediately reported to Mr. Trist, United States consul at that place. The papers of the vessel presented by him to the consul were evidently fraudulent, and not such as, under the laws of Congress, would entitle his vessel to that protection which is due to every vessel which in truth belongs to the United States, and sailing lawfully under their flag. Under these circumstances, Mr. Trist informed Captain McKenney, commander of the Ontario, a public vessel of the United States, of these facts; and advised him to seize and detain the vessel until this government could be advised of the facts, and direct what course should be adopted. The advice of Mr. Trist was pursued, and Captain McKenney took possession of the brig Thomas, while in the port of Havana. The vessel was of Spanish build, and was manned entirely (the captain excepted) by foreigners; and the number of men on board was much greater than is usually employed in navigating a vessel of the size of the brig Thomas. These were circumstances, in addition to the fraudulent character of the papers, calculated to excite strong suspicions that the vessel was destined for some unlawful enterprise, and probably for the slave trade. A correspondence ensued between the Captain General of Cuba and Mr. Trist, which terminated in a friendly disposition of the question, whether the seizure of the vessel in the port of Havana was a violation of the jurisdictional rights of Spain. Upon that point, now adjusted and settled, I wish to be understood as expressing no opinion. Upon another point which presents itself it is proper that I should say, that, let the question discussed between the Captain General of Cuba and the consul of the United States be as it may, so far as relates to Captain Howell and his vessel the proceedings were lawful, and Captain Howell has no cause of complaint. Suppose the Spanish authorities had given their consent to the seizure before it was made; then, what legal rights would have been violated? None, that I can perceive, more than if the seizure had been made on the high seas. In this case, the consent of the Spanish authorities was not obtained before the seizure; but this could only make the act wrongful, if the Captain General was correct in his view of the public law, so far as the Spanish authorities and Spanish rights were concerned. It would not make the seizure wrongful, so far as relates to Captain Howell and his vessel. If an officer, in executing civil process, shall break open the house of the defendant and arrest him, the officer is subject to an action and to damages for breaking the house; but the arrest is good. I refrain from any argument showing the inapplicability of the principles of the public law in reference to the protection of vessels in the ports or waters of a friendly power, when that protection is claimed by a vessel of the United States against their public vessels, acting in conformity to, and in execution of, the laws of Congress. Upon the latter inquiry made in your letter, as to the sufficiency of the proof to warrant a prosecution for any offence against the laws of the United States, I regret to say that, after a careful examination of our navigation acts, and the acts prohibiting and punishing the slave trade, I am unable to find any providing sufficiently against such misconduct, in regard to the papers of a vessel, (as Captain Howell had practised,) which will subject him to legal punishment. Nothing short of a revision of these acts, with additional penal provisions, embracing cases not foreseen when these laws were passed, will save the American flag from abuse, and from being prostituted to the vilest purposes. I doubt whether the proof exhibited would be sufficient to subject Captain Howell's vessel to condemnation, under the first section of the act of the 3d of March, 1819, entitled "An act in addition to the acts prohibiting the slave trade;" for, although there can be no doubt of its sufficiency to warrant a seizure, still it might be deemed insufficient to warrant a final condemnation. Therefore, without additional evidence, connecting his proceedings at Key West with a design to engage in the slave trade, I would not advise any further proceedings against him or his vessel. I am, sir, &c., &c., To the SECRETARY OF STATE. FELIX GRUNDY. CHOCTAW RESERVEES UNDER DANCING RABBIT CREEK TREATY. The only requisites to a title to reservations under the treaty of Dancing Rabbit creek, indicated in the treaty, are, that the persons applying be Choctaws and heads of families, and shall signify their intention of becoming citizens of the States within six months from the ratification of the said treaty. ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to acknowledge the receipt of yours of the 28th instant, with the accompanying documents. Your first inquiry is, whether the 14th article of the treaty of Dancing Rabbit creek is to be confined to the heads of families who have made improvements, or to be extended to each head of a Choctaw family desirous to remain and become a citizen of the States, who shall have sig nified his intention to the agent within six months from the ratification of the treaty? The language of the 14th article is, "Each Choctaw head of a family, being desirous to remain and become a citizen of the States, shall be per mitted to do so, by signifying his intention to the agent within six months from the ratification of the treaty, and he or she shall thereupon be entitled to a reservation," &c. The only requisites here indicated are, that the person applying be a Choctaw head of a family, and shall signify his intention of remaining and becoming a citizen of the States within six months from the ratification of the treaty. To superadd that they (the Choctaw heads of families) shall have made improvements, would be making a very important change in the treaty, not warranted, it seems to me, either by its letter or spirit. The latter part of the same article (14th) makes a special provision in reference to those who may reside on their lands, but contains nothing which restricts the right to claim reservations to that class of individuals. As to your second inquiry, my opinion is, that the act of the 3d of March, 1837, was designed by Congress (and such is its fair construction) that the whole subject in relation to the lands covered by the contiguous locations made by Mr. Martin should be reserved for the final action of Con. gress. This is apparent from the 7th section of said act. And the intention of Congress to this effect is clearly manifested by the act of the 22d of June, 1838, entitled "An act to grant pre-emption rights to settlers on the public lands." My opinion is, that you ought not to act in the case of Susan Colbert, until Congress shall have declared its will upon the claim which has been located upon the same lands. It is not intended by me to intimate any opinion as to the validity of the respective claims. Yours, with great respect, To the SECRETARY OF WAR. FELIX GRUNDY, TERRITORIAL JUDGES NOT LIABLE TO IMPEACHMENT. Territorial judges, not being constitutional but legislative officers only, and not civil officers within the meaning of the constitution, are not subject to impeachment and trial before the Senate of the United States. ATTORNEY GENERAL'S OFFICE, SIR: Since you referred the letter of Judge Doty to this office, that gentleman has called on me, and stated that he wished to withdraw his application to you, and only desired my opinion upon a single point-that is, whether Territorial judges were, under the constitution of the United States, liable to, and subject to removal by, impeachment? This point is raised by his letter which was referred to me, and I therefore proceed to give my opinion on it. The provision in the constitution which relates most directly to this subject is contained in the 1st section of the 3d article, which declares that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. The construction of this part of the constitution has been settled, it seems to me, by the opinion of Congress, expressed by various acts, and also by the decisions of the Supreme Court of the United States. By the article of the constitution referred to, the judges are to hold their offices during good behavior. Congress cannot, consistently with this provision, provide any other or different tenure of office within the States Congress has, in most cases, limited the tenure of office of Territorial judges to four years. This could not be done, were they judges under, or provided for by, the constitution; because, by that instrument, the tenure is during good behavior. It should be noticed, that Congress has imposed this limitation of four years, not in a single instance only, but in many. It has been imposed in the Territories embraced within the limits of the original States, where the territory has been ceded to the general government, and Territorial governments have been created therein. It has also been done in the territories purchased by the United States from foreign nations. I think these acts clearly prove the sense of Congress to be, that Territorial judges cannot be judges under the constitution, but are mere creatures of legislation. I have said that the Supreme Court of the United States have also decided this point. In the case of the American Insurance Company and others vs. Contee, reported in 1 Peters, the court very distinctly recognise the opinion above expressed, and convey their views in the following strong language: "These courts, [meaning Territorial courts,] then, are not constitutional courts, in which the judicial power, conferred by the constitution on the general government, can be deposited. They are incapable of receiving it; they are legislative courts, created in virtue of the general rights of sovereignty," &c. The only remaining inquiry is, as to the liability of Territorial judges to impeachment under the constitution. The fourth section of the second article of the constitution is in these words: "The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." If the construction of the constitution be correct, (as I suppose it is,) that these judges are not constitutional but legislative judges, I see nothing in the constitution which would warrant their being embraced by the expression" and all civil officers of the United States." They are not civil officers of the United States, in the constitutional meaning of the phrase; they are merely Territorial officers, and therefore, in my opinion, not subject to impeachment and trial before the Senate of the United States. I have the honor, &c., &c., To the PRESIDENT OF THE UNITED STATES. FELIX GRUNDY. WHAT BANKS CAPABLE OF BEING PUBLIC DEPOSITORIES. The Bank of America having paid out bills of other banks of a denomination less than five dollars, has incapacitated itself from being a depository of the public money. ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to acknowledge the receipt of yours of the 2d instant, accompanied by the letter of the President, the resolution of the board of directors, and the statement of the cashier of the Bank of America; and my opinion is asked as to the legality of employing that bank as a depository of the public money, under the provisions of the act of the 23d of June, 1836, entitled "An act to regulate the deposites of the public money." The 5th section of that act declares, "That no bank shall be selected or continued as a place of deposite of the public money, which shall not redeem its notes or bills on demand in specie; nor shall any bank be selected or continued as aforesaid, which shall, after the 4th day of July, 1836, issue or pay out any note or bill of a less denomination than five dollars," &c. The latter branch of the foregoing provision is alone applicable to the question under consideration. The language used by Congress is very comprehensive; it embraces not only banks which may issue their own notes of a less denomination than five dollars, but it says, or may pay out any note or bill of a less denomination than five dollars." This, evidently, according to its literal meaning, would include the notes or bills of all other banks; and if the spirit of the act is regarded, no doubt can exist. The object of this section of the act was to prevent, so far as Congress had the power, the circulation of small notes. That object would be entirely defeated if a bank shall be considered exempt from the disability created by the act, which should merely refrain from making and putting into circulation its own notes of a less denomination than five dollars, and should receive and pay out notes of other banks to any amount of the forbidden description. Congress would have done nothing towards the accomplishment of its object, if such a construction be placed upon this section of the act. And Congress must have foreseen that their provision would be wholly inoperative, unless they went further than barely to include banks which should issue their own notes of a less denomination than five dollars; they, therefore, used the very broad and comprehensive expression, "or may pay out any note or bill of a less denomination than five dollars.' I therefore conclude that the true construction is to embrace all banks which shall have paid, or shall pay out, notes or bills of a less denomination than five dollars, whether such notes or bills be on their own or any other bank. The next inquiry is, Has the Bank of America done anything which excludes it from being a depository of the public money? I think so; it has, according to the admission of its officers, during the suspension of specie payments, received and paid out, in the course of its business, notes of a less denomination than five dollars. It is true this is said to have been done by the tellers of the bank, without any order or resolution of the board of directors directing them to do so. The tellers are officers or agents of the bank; they are appointed by the directors, and give bond and security to the bank for the faithful discharge of their duties. So far as relates to receiving and paying out money, a bank acts by its tellers and clerks, and their acts must be viewed as the act of the bank; and more especially should this be the case in the absence of all evidence showing that the conduct of the clerks and tellers was disapproved of, and the practice discontinued so soon as the superior officers of the bank became acquainted with it. In conclusion, I will remark, that Congress authorized the connexion between the government and the banks; and it prescribed the terms upon which that connexion might be created and continued. In this instance that connexion has been dissolved by the bank itself; and it cannot be renewed, under the deposite law of 1836, by virtue of any legal authority existing in your department, derived from that act. I have the honor, &c., &c., FELIX GRUNDY. To the SECRETARY OF THE TREASURY. |