Southward; that the ball will not fit the cannon; and that though she was originally designed for a privateer, the intention was changed so soon as the act of Congress prohibiting vessels to be armed in our ports was known; in proof of which he says that a cargo is now engaged for her. These, however, are subjects proper to be discussed in court. I am sorry to say that the Surveyor of the Port, who is considered here as the informer, seems to entertain great apprehensions from some of those who considered themselves as interested in this business. The vessel will, I trust, be ready to sail tomorrow, and I shall then set out with the troops for Richmond. With very much respect, I am, &c. J. MARSHALL. LETTER FROM J. MARSHALL TO THE GOVERNOR OF VIRGINIA Report of Circumstance Attending Arrest of the Ship Unicorn RICHMOND, July 28th, 1794. The troop of Cavalry ordered to Smithfield returned yesterday. A longer time than I had counted on was necessary to carry on board the different articles libeled, and to move the Unicorn, and this has produced a delay more considerable than was expected. She is now on her way to Bermuda Hundred, guarded by Capt. Weisiger with his company of Light Infantry, and attended by the Revenue Cutter. The additional expense of returning Capt. Weisiger's company in the Unicorn is very inconsiderable, and is incurred at the request of the Marshal who did not think her safe unless guarded by armed men. His apprehensions of a rescue seem to have arisen in some measure from reports prevailing in Smithfield, and received in a manner deserving some credit, tho' not so as to be testimony, but principally from the coldness and decision of Capt. Sinclair's character from the high degree of irritation he manifested, and from the well known total inability of the Cutter to afford any effectual aid in case of attack. Captain Sinclair declares his perfect submission to the laws, and avers that he had never meditated resistance to them. There were, however, strong circumstances which might read3" The Calendar of Virginia State Papers," Vol. VII, pp. 234-235. ily induce an opinion that violence was contemplated. The night after the Unicorn was seized, persons were heard for a considerable time loading firearms in the house of Captain Sinclair. The drawing of iron ramrods, and ramming down the charge were distinctly heard. When the search was applied for, which I mentioned in my former letter, he gave a list of the arms in his possession, and among them were fifteen muskets. These were found all charged. The situation of the house is such as completely to command the Deck of the vessel. I do not think that one hundred men placed in the vessel could have protected her ten minutes from fifteen placed in the house, and at this time, notwithstanding the application to Colonel Wells, and the exertions of Major Taylor and the Marshall in Smithfield, only a guard of six or seven badly armed men had been raised. Captain Sinclair says that the only resistance he ever contemplated was against an unauthorized attempt, which he understood was to be made to search his house. This may be the fact, but it would scarcely seem to be so, since it was unknown to him that the only search ever designed was under the warrant of a magistrate, which was applied for, but not obtained. This circumstance, added to the evidence that the vessel had been designed for a privateer, did, I own, make such an impression on me, that I should, had the Marshall requested it, increased the guard. I had, while in Smithfield, frequent conversations with individuals of the Isle of Wight. So far as I can judge of their sentiments from their expressions, I am persuaded that they feel no inconsiderable degree of mortification that a necessity should exist for calling militia from a distance to their neighborhood, to protect from violence the laws of our country, and I am persuaded too that this sentiment will so affect the commanding officers as to secure more activity from them on any future occasion than has been exhibited on this. They seem not to have been sufficiently impressed with the importance of maintaining the sovereignty of the law; they seem not to have thought it a duty of strong and universal obligation to effect this object, but I do believe that a more proper mode of thinking is beginning to prevail. The militia on duty have so acted as not to have produced among the citizens, so far as my information extends, a single murmur. The cheerfulness with which the troop submitted to labor not usually imposed on Cavalry does them much honor. It is with great regret I mention an accident which befel one of the Prince George Infantry. The Unicorn almost touched the land. The company from Prince George was on board, and was ordered neither to go on shore, or to permit any person from the shore to come on board the vessel. A militia man who had stolen out attempted to return, and on being hailed by the sentinel attempted to rush by him without an answer. It was so extremely dark, that the person could not be distinguished, and the sentinel at the same time pushed with his bayonet and attempted to fire. The rain which had fallen fortunately prevented the discharge of the musket, but a dangerous wound was received from the Bayonet. Dr. Crawford of the Richmond troop, with great humanity dressed his wounds and attended him through the night, but could not procure a probe to ascertain its depth. I will send to you tomorrow an account of the monies expended by me on the expedition. With very much respect & esteem, &c. J. MARSHALL. OPINION OF JOHN MARSHALL RELATING TO THE PURCHASE AND SALE OF LANDS FOR ARREARS OF TAXES AND DUTIES October 15th, 1794. An agent appointed under the act for the more effectual collecting certain arrears of taxes and duties, has purchased at a sale made in pursuance of that law, a tract of land, which he has since sold for a sum more considerable than he purchased it, and it is inquired whether the surplus is a gain to the Commonwealth, or ought to be credited to the sheriff. The Act of Assembly is by no means explicit. It will admit of either construction, and there is some weight in the argument in favor of either. The object of the Commonwealth is not to speculate, but to secure the collection of debts due to itself. The purchase of the agent, therefore, may be considered as a medium of col lection. This idea derives aid from the clause directing the agent to sell for specie commutables, or certificates, as the arrears of taxes could or were to be discharged by law. It would seem probable that a discretion would have been left with the agent to have sold for either article as should be most advantageous for the Commonwealth, if the product of the sale was not to be credited to the sheriff. But on the other hand, if the Sheriff should be credited with the profits of the sale, he ought to be debited with the loss. It is by no means certain that this would be the judgment of the court, for the act speaks of the purchase of the agent as an absolute purchase, and not a mere substitution of himself in the place of the acting sheriff for the sole purpose of selling the property. The act too directs the amount of the sale to be endorsed on the execution. This forms an immediate credit to the sheriff, and the law nowhere authorizes a recharge of the deficiency, should one arise. I am therefore of opinion, that the agent ought not to credit the Sheriff for the proceeds of the sale made by himself, and I give that opinion with the less reluctance, because should the law be otherwise, the party can immediately bring it before the court, and the Commonwealth will be assured on losing the profit of this sale, that she is secure against loss on a future occasion when the property may sell for less than the sum given by the agent. J. MARSHALL. OPINION OF JOHN MARSHALL RELATIVE TO FINES AND PENALTIES UNDER THE MILITIA LAW Ques. Ist. Are those delinquent who have failed to obey the requisition lately made on the Militia, liable to the fine which is not to exceed one year's pay by the Federal law, & also to ten dollars for not appearing at the place of rendezvous by the State law? 2nd. Are subjects or citizens of foreign powers liable to the penalties from Militia laws? Ans. Ist. I rather incline to the opinion that the only fine imposed by the Act of Congress ought to be collected. The words of our Act of Assembly are general, and I have 4" The Calendar of Virginia State Papers," Vol. VII, pp. 347-348. no doubt of the powers of the legislature to give additional penalties for the breach of any law of the Union, but I rather suppose the act of the Virginia Assembly would be construed to apply to cases to which the Congressional Act could not apply. Ans. 2nd. I do not think the subjects or citizens of foreign powers liable to the penalties of our Militia law. The Act of Congress plainly excludes them from the Militia, and the Act of Assembly is expressed to be enacted for the purpose of carrying into effect the Militia system of the Union. Oct. 16th, 1794. J. MARSHALL. LETTER FROM J. MARSHALL TO THE Sept. 13th, 1794. I enclose you a statement made by the Captain of the Artillery company of this town of the articles required for the preservation or use of the artillery under his care. I have, &c. JOHN MARSHALL'S OPINION THAT THE COMMISSION OF ELISHA WHITE, SHERIFF OF HANOVER, IS FORFEITED FOR FAILURE TO QUALIFY IN TIME It is stated that Mr. White was commissioned as sheriff on the 13th of August, 1794. That the preceeding Sheriff continues in office till the 6th of November so that the commission expresses that the power of Mr. White is to commence on the 6th of November. Several accidents prevented his giving bond and security according to law within two months after the date of his commission, but in the third month he appeared in Court and offered to comply with the law. It is enquired whether under these circumstances the court ought to have received the bond, or whether the executive ought to proceed to make another appointment. The case of Mr. White is a hard one, but the law seems to leave no discretion with the Executive to judge of those cir5 Ibid., p. 309. "The Calendar of Virginia State Papers," Vol. VII, pp. 383-384. |
