Ebenezer Rockwood Hoar to William Martin, 4 April 1870

April 4, 1870. William Martin, Esq. U. S. Commissioner, Fremont, Dodge co. Nebraska. Sir: I have received your letter of the 28th ultimo, in which you say that a gentleman named Willis Drummond came into your office, and "gave" me "as authority" for a certain statement made by him in regard to the proper manner in which you should perform the duties of your office of Commissioner in proceedings before you, arising under the Internal Revenue Laws. I am not aware that I have ever expressed any opinion to Mr. Drummond, or expressed any opinion officially to any person, upon the duties of U. S. Commissioners in these cases, although I, in common with all lawyers, have, I suppose, an opinion in respect to what these duties are—but I have no right to direct or instruct Commissioners, because they are quasi judicial officers, in no respect subject to the control of the Attorney General. Neither do I understand that any United State Attorney has a right to control them in the performance of these duties—although I have no doubt that a United States Attorney can, in his discretion, decline to prosecute a case pending before them, and can ask leave to enter a nolle prosequi in it, when the United States are the prosecuting party—and that, ordinarily, any such request should be granted by the Commissioner—although there might be cases in which, if I were a Commissioner, I should refuse to grant it. I have not, however, supposed that a Commissioner, if he finds on the evidence submitted, that a crime against the laws of the United States, of which he has cognizance, has been committed,—and also finds that the person charged in the complaint is probably guilty of the crime charged, has any discretion in the matter, if the United States Attorney chooses to prosecute the charge.—If a person has committed even a trivial offense under the Internal Revenue Laws, and is in legal form charged before you as Commissioner with having committed it, and you have jurisdiction to inquire into the charge, and it is proved that he is probably guilty of the offence charged, it seems to me that you, as Commissioner, must hold him to bail, or commit him to answer such matters and things as he may be required to answer at the next term of the United States Court in your District, and that it is only for the United States Attorney, in his discretion, to ask leave to dismiss the complaint, or to enter a nolle presequi in it, even on the payment of the license or taxes due, or taxable costs,—and that the United States Attorney, in the exercise of this discretion, is subject to the direction of the Attorney General, the Secretary of the Treasury, and the Commissioner of Internal Revenue. In those Districts where the United States Attorney, or his assistant, is not present at hearing, before Commissioners, unless the case is an important one, because the distance between his residence, and that of the place of hearing, is too great to make it convenient for him to attend, I do not know that the United States Attorney could not by certain rules indicate to a Commissioner what the Attorneys practice would be in reference to discontinuing proceedings, on payment of special taxes or costs, and that this might be done by the Commissioner, in the absence of the Attorney or his Assistant, pursuant to these rules,—and perhaps, if the parties were strictly guarded, no very great harm could come from it, or any very serious objection be urged against it.—But you are a Commissioner appointed by the Circuit Court—and if any persons have a right to instruct you in these matters, they are the judges of that Court. Very respectfully, E. R. Hoar, Attorney General.