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Henry Stanbery to Benjamin F. Tracy, 26 November 1867

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November 26, 1867. B. F. Tracy, Esq. United States District Attorney, Brooklyn, N. Y. Sir: I have had under consideration your letter of the 22d instant, in relation to the case of the United States, vs. John C. Brain. You state that the affidavits enclosed in your letter seem to establish, "pretty clearly," that at the time of the capture of the Chesapeake, Brain held an appointment in the so-called Confederate Navy. If that were so, you ask me whether it would protect him from punishment;— and you further ask to be advised as to the disposition proper to be made of the case. Upon a careful examination of the affidavits, and of the letters also endorsed, I am not prepared to say that they establish the fact that at the time of the capture Brain held such an appointment. The appointment is not sufficiently made out to justify me in making it the basis of official action in the way of directing or advising a nol. pros. I do not feel called upon at this time to express an opinion upon the question which will, in case the fact of such an appointment is made out on the trial, then arise. That is to say, whether such appointment affords Brain a defence. The question of fact is first to be settled; and until that is settled the other question does not arise. Inasmuch as the question of fact is left, at present, in so uncertain a posture, that it is proper to submit to a jury, it would be of no avail now to consider the further question, which, when it does arise, will be decided by the court. Very respectfully, yours, &c. Henry Stanbery, Attorney General. The affidavits & letters are herewith returned
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