From Levi Lincoln
Washington April 12th 1802
I have the honor of stating my ideas on the subject submitted to my consideration by your favor of yesterday. The Courts of the Columbia District, are national ones created by statute. Their powers are merely judicial, unless in particular instances particularly expressed, or necessarily implied. The mere establishment of these courts did not of course include, a particular extent of jurisdiction in reference to objects, or a given mode of procedure. Their powers are given, defined & directed by law. Their powers are different in different counties. The power in question, is not given to them expressly, nor does it necessarily attach itself to any part of their duty. It is not so with the President. The constitution vesting him with powers, the right to exercise them on some objects takes place, so soon as they are brought into existence. The moment, that a district or a state is formed with a national judiciary, a right vests in the President to exercise those powers, which he is authorized to exercise in other districts or states in the United States—No statute provision can be necessary for this purpose—
The law providing that the Courts of the U.S. shall have power to issue all writs & processes necessary for the exercise of their jurisdiction, and the one of 1792. c. 36. which enacts that all writs and processes issuing from the Supreme and circuit court, shall bear test of the chief justice, shall be under the seal of the court, and the signature of the clerk, and that the forms of writs, executions and other processes, and the forms and modes of proceeding in suits, in those of common law, shall be the same as are now used in the said Courts under the act to regulate processes in the courts of the U.S. can, in my opinion, be construed to refer only to such writs and processes as were returnable to the court, on which they could act, or to such as issued in pursuance of some order or judgment of theirs, & which were returnable to them, in their ordinary course of the administration of Justice, and not to warrants for the Execution of sentences of death on a capital offender—
The laws of Virginia and of Maryland being adopted for the district of Columbia, operate in the respective counties in the same manner as tho’ they had been particularly enacted by Congress for that purpose. They must however be so constructed, as to be accommodated to the constitutional provisions of the national Government.
Separate from any custom, or law directing the matter particularly, I think the copy of the judgment of the Court delivered to the marshall, would justify him in discharging the duty, which the law devolves upon him, by executing the sentence of the court. For the execution of most sentences, inflicting corporal punishment, if not all, those of death excepted, the officer has no other warrant. The time for executing such sentences is usually left to his discretion. In favor of life, and to give dignity & respect to man, in the execution of a criminal a more solemn form has been usually adopted, especially in this Country. In most of the States, & I beleive in all the northern ones, it has been the practice for the Executive to sign death warrants, on the convictions in the State courts. If so, and if, on general principles, and those of common law, the copy of a judgment of a court would be a sufficient warrant, as it is in virginia, for the officer to execute the sentence of death, I think it right and safe, to consider the President as vested with the power of signing the death warrants on the capital sentences of the national courts—In no view of the matter does it abridge the rights of others, in no view is it unfavorable to the prisoner. It seems to be an act necessarily incident to the power of granting reprieves & pardons for offences against the U.S. of a capital nature; otherwise a precipitate execution of a convict, under the sentence or warrant from the court, might place him out of the reach of that mercy, which his country had in reserve for him—
The Art. 2d Sec 1. of the Constitution provides that the Executive power shall be vested in the President of the U.S. The exercise of no power is more completely, & seriously executive, than the one in question. A conviction, and a sentence of death has been awarded. The President has been furnished with a copy of the judgment. It has not been carried into execution. The law requires that it should be. By the 3d Sec. of the above mentioned Art. The President is to take care that the laws be faithfully executed. The warrant to the officer, is notice that neither reprieve or pardon will intervene, and that the law must have its course. In the judgment the mode of Execution, & the place where, is pointed out. The prisoner is to be taken to the gaol, from whence he came, and from thence to the place of Execution, & there be hanged by the neck untill he be dead. The officer who is to take the criminal, back to the gaol, is the one designated by law, to execute the sentence of death, on him. The taking him back to the gaol, is a part of the sentence—All that remains is to fix the time for the complete execution of it—In common cases, this is left with the officer—In an act of the, highest importance to an individual & to society, it has usually been left with the executives of the several states, the reason of the thing, a very strong analogy, and I think, the Constitution, on convictions in the national courts, places it in the President
I have the honor to be Sir with the highest respect your most obt Sert
RC (DLC); at head of text: “President of the United States”; endorsed by TJ as received 13 Apr. on “Mc.Girk’s case” and so recorded in SJL.
For the 1789 law that empowered courts to issue writs NECESSARY FOR THE EXERCISE OF THEIR JURISDICTION and for the 1792 act “regulating Processes in the Courts,” see TJ to Lincoln and John Thomson Mason, 11 Apr.