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Title: William M. Evarts to Benjamin F. Wade, 22 February 1869

Date: February 22, 1869

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.00805

Contributors to digital file: Elizabeth Lorang, Nima Najafi Kianfar, Kevin McMullen, and John Schwaninger



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February 22, 1869.

Hon. Benj. F. Wade,

Pres. pro tem of the Senate.

Sir:

I have had the honor to receive the Resolution of the Senate passed on the 13th of Feb. inst. whereby the Att. Gen'l. is "directed to inform the Senate whether or not he has directed the suspension, delay, or discontinuance of proceedings against parties prosecuted in New York City for frauds upon the Internal Revenue— and, if so, in what cases and for what reasons; also, to communicate to the Senate, if not inconsistent with the public interests, the correspondence with the Dist. Attorney on the subject."

In compliance with the direction of this Resolution, I have the honor to inform the Senate, that on the second day of November, in the year 1868, I gave directions to Samuel G. Courtney, Esq., U. S. Attorney for the Southern Dist. of New York, that the indictments ag't Alva Blaisdell, and ag't Dan'l Messmore and others, should not be brought on for trial without further direction from me; and that, on the 21st day of the same month, I instructed Mr. Courtney that the public consideration which had induced me to give the above direction no longer requiring a delay in the prosecutions, he was directed to proceed with them in due course of the administration of justice. My letters to Mr. Courtney of the 2d and 21st of November last are hereto annexed, marked A and B.

The prosecutions referred to in my letters were for frauds upon Internal Revenue, as I then understood, and still understand. The reasons for this suspension or delay of the regular progress of these prosecutions, grew entirely out of what I regarded as an imperative official duty in the proper conduct of a complaint, then presented to the President of the United States, of the commission of crime, and of misconduct in office on the part of Dist. Attorney Courtney, and of Robert Murray, Esq, Marshal of the Southern Dist. of New York, for the purpose of obtaining the exercise of the President's authority under, and in conformity to, the provisions of the second section of the Act of March 2, 1867, commonly known as the Tenure of Civil Office Act. This complaint was presented by a gentleman of distinguished public and professional position in the City of New York, the Hon. William Fullerton, late a Justice of the Supreme Court of the State of New York, and was supported by sundry depositions and certificates imputing flagrant official misconduct, as well as violations of the criminal law, and manifestly calling for the removal of both those officers under the provisions of the Tenure of Civil Office Act above referred to.

Upon an examination at the request of the President, had in conference with him, of these papers, and hearing Mr. Fullerton urge upon the Executive an immediate removal of the officers, I came to the conclusion, and so advised the President, that a just discharge of the responsibilities imposed by these provisions of the Act in question would not permit so grave a step as the removal of important public officers, and the accusation of them, before the Senate, of crime or misconduct in office, upon an ex parte exhibition of charges against them, unless extraneous circumstances precluded delay, or the evidence admitted of no distrust or gainsaying.

Upon stating to Mr. Fullerton this opinion, and the concurrence of the President in its propriety, and stating to him that immediate notice would be given to Mr. Courtney and Mr. Murray, and their presence at Washington required, as soon as the documents upon which he was presenting the case were finally submitted to the President, I was informed by Mr. Fullerton that the situation of the deponents to this complaint, or some of them, or those connected with them, or with the criminal conduct connected with these charges against the Dist. Attorney and marshal, in regard to the prosecutions pending in the District where the officers represented and controlled the power of the government, was such, that, if there was any doubt of the removal of these officers, their fears & interests would not permit the use of their accusations for the public service— and he was not at liberty to submit the papers at that time to the President. Upon my inquiring whether he was expecting to obtain the consent of these accusers to the submission of the papers, that the President might know whether the charges were to be further pursued, Mr. Fullerton informed the President and myself that if the prosecutions in the cases in which I afterwards took action, as above stated, & which were then first brought to my notice, could be delayed for a few days, he would be prepared, at the expiration of that time, to say whether he could submit the proofs against these inculpated officers for the action of the President.

Upon this statement I was of opinion, and so advised the President, that a due regard to the proper administration of his duty, under the second section of the Tenure of Civil Office Act, required that an opportunity should be given, by a temporary delay of the prosecutions in question, for Mr. Fullerton to ascertain whether the charges were to be duly submitted, or would be withdrawn. The President concurring in this disposition of the matter, I gave the instructions contained in my letter of Nov. 2d, to Dist. Attorney Courtney— and these, and these alone, were the reasons for my direction of the suspension or delay of the proceedings in question, and constituted the "considerations of a public character" which are referred to in that letter.

Subsequently, and within a few days thereafter, Mr. Fullerton returned with some additional support of the charges, & submitted them to the President for his action. Mr. Courtney and Mr. Murray were immediately advised thereof, and their presence required to meet these charges. They did meet them by their own denials, and by the exhibition of counter-proofs—and with such effect that I advised the President that the state of the proofs did not justify the suspension of the officers, which, by the statute, was required to be supported by his being satisfied of the existence of the imputed misconduct in office, or of the commission of the crime charged—nor did it warrant an accusation to the Senate in the nature of an impeachment of these public officers, which was prescribed by the Statute as a necessary sequel of the suspension of the officers. Upon this conclusion being adopted by the President, and announced to Mr. Fullerton, and as early thereafter as any occasion required, I have the directions to proceed with the prosecutions that had been delayed, which are contained in my letter of the 21st of November.

On the 17th of December, I instructed Dist. Attorney Courtney to make a report to me in respect to a prosecution which he was conducting against Alva Blaisdell, John McClearen, James F. Diezendorf, and John J. Eckel, and until my examination of the case, and my final directions thereupon, that the indictment in that case should not be brought to trial. I rec'd from Dist. Att. Courtney, in due course, a report, giving me the information which I desired, and, on the 23d of December I wrote him that the prosecution of the case need no longer be stayed.

For the reasons that induced this interposition, I beg leave to refer to the correspondence between Dist. Attorney Courtney and myself, to which I have referred— as the same are therein fully expressed.

These are the only instances in which I have directed "the suspension" or "delay" of "proceedings against parties prosecuted in New York City for frauds upon the internal revenue"— and I have in no case directed the "discontinuance," of such proceedings. I have given in full the reasons for my intervention in each instance; and not regarding it inconsistent with the public interests that the correspondence with the Dist. Attorney on the subject, should be communicated to the Senate, I submit it with this, my reply to the resolution.

I have the honor to be,

with the greatest respect,

Wm. M. Evarts,

Attorney General.


Report to U. S. Senate, in obedience to a Resolution, &c.
Correspondence
Blainsdell, McClearen & Diezendorf & Eckel
Blaisdell, McClearen, & Dierzendorf & Eckel
Correspondence


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