Title: John M. Binckley to Richard McCormick, 8 April 1868
Date: April 8, 1868
Source: Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.
Location: National Archives and Records Administration
Whitman Archive ID: nar.00504
Contributors to digital file: Elizabeth Lorang, John Schwaninger, Nima Najafi Kianfar, and Kevin McMullen
April 8, 1868.
Hon. Richard McCormick
Governor of Arizona Territory.
The Attorney General ad interim has received your communication of the 12th ultimo, and also that of the 14th ultimo, respecting public matters relating to your Territory. Your letters have been referred to the Secretary of State, whose Department is the customary resort of Territorial Officers, for Executive direction or advice.
In your letter of the 12th, you state that an Act of Congress of 5 May, 1866, authorized the transfer of a part of the Territory of Arizona to the State of Nevada, with the consent of that State; that the Legislature of Nevada is reported to have adopted a resolution accepting the annexation—but that it is claimed that the existing Constitution of Nevada is inconsistent with an enlargement of her boundaries,—and thereupon you inquire whether a valid consent has been given by the State of Nevada, and whether the tract of country referred to, is now a part of that State?
I have to say that the opinions which it is made the duty of the Attorney General to give, are confined to questions of law exclusively, and to such only as have been submitted for his advice by the President, or the Heads of Departments, upon subject matters pertaining to their business respectively. Moreover, it has long been the practice of Attorneys General to reserve expressions of opinion in all cases where some other competent authority, and especially where the Judiciary, was likely soon to make an authoritative decision of the same point.—The instructions and occasional advice given to District Attorneys by this office, arise from the Attorney General's duties as the Head of the Law Department.
With regard to your letter of the 14th, relative to the civil status of the aborigines of the Territory of Arizona in view of the Treaty of Guadaloupe Hidalgo, and the Gadsden Treaty with Mexico, the succeeding Acts of Congress, the Indian Intercourse Laws, the Civil Rights Act of 1866, the proposed Article XIV in amendment of the Constitution of the United States, and various kindred matters, I herewith enclose a copy of our instruction to the District Attorney of New Mexico of 23rd November last, in cases involving similar doubts. You will preceive from the enclosed that these highly important questions are before the courts, and may not improbably reach the Supreme Court of the United States. They are, of course, not for the Attorney General to decide,—whose opinion upon any one of them could be evoked only by some case arising in the regular executive business of the general government, and not admitting of a resort to judicial determination.
Respectfully, your obedient servant,
John M. Binckley,
Assistant Attorney General.