Thomas Jefferson Papers

From Thomas Jefferson to Levi Lincoln and John Thomas Mason, 11 April 1802

To Levi Lincoln and John Thomson Mason

Sentence of death having been passed by the Circuit court of Columbia, against a citizen1 of Washington county, guilty of an aggravated murder, a question arises Who is to sign the warrant for execution?

By the act of Congress 1801. c. 86. the laws of Maryland, as they existed at that date, are in force in Washington county: and by the law of Maryland 1795. c. 82. the Governor of Maryland is authorised to issue a warrant of execution against any person sentenced to death by any court of that state. but the state of Maryland having now no jurisdiction over the county of Washington in Columbia, the Govr. of Maryland personally, cannot exercise this act of highest jurisdiction, the signing a warrant for the death of a Man in Columbia.2

The laws of Congress have given to the President of the US. the nomination of judges, justices, attornies, marshals and officers of the customs in Columbia, as elsewhere: and to the circuit courts of Columbia the power of appointing constables, inspectors, surveyors and to all other offices necessary for the district under the laws of Maryland or Virginia. but have not given either to the President or the Circuit court specially all the powers possessed by the Govr. of Maryland, nor generally executive powers which might, by description, render either equivalent to the Governor of Maryland, so as to authorise their assuming this particular function exercised by the Governor under the Maryland act of 1795.3

The constitution of the US. gives the President power to grant reprieves & pardons for offences against the US. but a power to pardon is not a power to punish.

The act of Congress 1790. c. 9. §. 33 says the manner of inflicting punishment of death shall be by hanging until dead, §. 14. that the courts of the US. shall have power to issue all writs necessary for the exercise of their jurisdiction; & 1792. c. 36. that all writs & processes issuing from the supreme or circuit courts shall bear test of the Chief Justice, shall be under the seal of the court & signature of the clerk, & that the forms of writs, executions, & other process, & the forms & modes of proceeding in suits, in those of common law, shall be the same as are now used in the sd courts under the ‘act to regulate processes in the courts of the US.’ 89. c. 21. [contind. 90. c. 13. contind. 91. c. 8. repealed 92. c. 36. §. 8. & therefore omitted in the statute book; but improperly, because the first act, tho’ repealed must be recurred to for explanation of the phrase ‘now4 used under the act to regulate processes.’]5

Had the trial & sentence in the present case taken place in Alexandria, where the Common law principle prevails that the warrant for execution must be under the hand & seal of the judge [4. Blackst. 396.] who would have signed the death warrant? who would sign such a warrant on sentence of the Circuit court of the US. in any other state?

The opinion of the Atty General is requested in this case for the government of the President.6

Th: Jefferson

RC (MHi: Levi Lincoln Papers); brackets in original; endorsed by Lincoln. FC (DLC); entirely in TJ’s hand, being his retained copy of a memorandum sent individually to Lincoln and Mason; concluding paragraph differs from RC (see note 6 below). Recorded in SJL as “Mc.Gurk’s case.”

Mason was U.S. attorney for the District of COLUMBIA (Vol. 33:380). CITIZEN: James McGurk; see his petition at 19 Apr. below.

ACT OF CONGRESS 1801: the “Act concerning the District of Columbia” of 27 Feb. 1801 specified that the LAWS OF MARYLAND would continue in force in the part of the district that had been ceded by that state. A Maryland law of 1795 that specified “the power of the governor in certain criminal cases” required the governor to issue a WARRANT OF EXECUTION for a death sentence. A federal statute of 3 Mch. 1801 supplementary to the act of 27 Feb. 1801 laid out the powers of the federal circuit court for the district, including the appointment of CONSTABLES and some other offices in the district’s counties (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 2:104–5, 115; Laws of Maryland, Made and Passed at a Session of Assembly … in the Year of Our Lord One Thousand Seven Hundred and Ninety-Five [Annapolis, Md., 1796], chap. 82.

ACT OF CONGRESS 1790: Section 33 of an act “for the Punishment of certain Crimes against the United States,” approved 30 Apr. 1790, specified HANGING as the form of execution for federal capital offenses. Section 14 of an earlier statute, the 24 Sep. 1789 act to establish courts of the United States, gave the courts POWER TO ISSUE writs as needed “for the exercise of their respective jurisdictions.” The ACT TO REGULATE PROCESSES, which was also passed in September 1789, was continued in May 1790 and February 1791. A new act “for regulating Processes in the Courts of the United States” was approved on 8 May 1792 (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 1:81–2, 93–4, 112–19, 123, 191, 275–9).

4. BLACKST. 396: TJ cited the 1770 Oxford edition of William Blackstone’s Commentaries on the Laws of England (see Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, Washington, D.C., 1952–59, 5 vols. description ends No. 1806).

OPINION OF THE ATTY GENERAL IS REQUESTED: it is not known if the concluding paragraph of the memorandum as Mason saw it matched the FC or was worded similarly to the memorandum that Lincoln received (see note 6 below).

1FC: “a citizen (Mc.Girk).”

2In margin of FC at the head of this paragraph, TJ wrote: “the Govr: of Maryld:?”

3FC continues here without a paragraph break. In margin of FC at the head of this paragraph, TJ wrote: “Presidt. or Judges as Executive?”

4TJ underlined this word in FC.

5In margin of FC at the head of this paragraph, TJ wrote: “Judiciary?”

6TJ wrote this sentence, his signature, and the date perpendicularly in the margin. In FC this paragraph reads: “The above grounds of doubt in the mind of the President are submitted to
{the Attorney Genl.}{mr J. T. Mason}for consideration, and his opinion is requested for the government of.”

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