Amos T. Akerman to Hamilton Fish, 28 November 1870

November 28, 1870. Hon. Hamilton Fish, Secretary of State. Sir: Your letter of the 14th instant calls for information of the facts in the case of G. B. Davis: His case has been the subject of an extended correspondence between this Office and the U. S. Attorneys for the Southern District of New York, and Mr. Lapaugh, the counsel of Davis. The material facts are these: In the month of April, 1868, Davis made a complaint against Bailey, who was then Collector of Internal Revenue in New York, for perjury.— On examination before the U. S. Commissioner, Bailey was honorably discharged. The Commissioner, thinking there was evidence of guilt on the part of Davis, requested the U. S. Attorney to proceed against Davis for perjury. The proper papers were prepared, and Davis was arrested. At his earnest request, the Commissioner permitted him to go out to procure bail. Instead of returning, he absconded to Canada. Afterwards Davis returned from Canada, and gave testimony against another party—induced, as he claims, by a promise of security from arrest. Having been arrested in New York, he made application through his counsel to the Attorney General for release. On the 27th day of February, 1869, Attorney General Evarts addressed a letter of instructions to the U. S. Attorney of the southern District of New York, from which the following is an extract: "Being satisfied that Davis did sincerely rely upon the protection now claimed as really promised to him by the communication made to him in the name and behalf of the Government, and seeing that such reliance was a reasonable inference from the invitation given him, to assist by his disclosures the purposes of the Government, and to come to New York with that object, I consider it to be the juster and safer course for the Government to yield to this reasonable expectation of the prisoner, rather than to criticize the terms of the assurance or the measure of authority under which it was made . . . . . I have no hesitation in saying that I find nothing in the statements on one side or the other, that are placed before me to warrant any protection to Davis, from punishment or prosecution for the crime charged in this indictment. I shall therefore give no direction that shall impede or embarrass the conduct of the prosecution, if Davis, after reasonable time to place himself beyond the reach of process, shall remain within the jurisdiction of the United States. There is nothing in the nature or circumstances of the offence charged against him, nor in his conduct in avoiding the process of the Court, that entitles him to any protection or sympathy. The direction I give, limited to the single point above stated, is wholly from jealousy that the good faith of the government should not be questioned. You will therefore dispose of the case for the present by directing his discharge from actual custody, leaving the prosecution otherwise in full force against him. And you will be at liberty, as it will be your duty, to rearrest him, if he should be found accessible to process after the expiration of fifteen days after his discharge from his present confinement. You will of course see that the prisoner and his counsel are both informed of this condition of his discharge—and if the prisoner does not choose to accept this as a satisfaction of the obligation of the Government towards him, the prosecution may regularly proceed." On the 5th day of March 1869, Mr. Courtney, then District Attorney for the Southern District of New York, sent to Mr. Lapaugh a letter, a copy of which is enclosed, on the 13th of the same month, an order was delivered to the Marshal discharging Davis, and the Marshal delivered an order of discharge to Mr. Lapaugh. This order Mr. Lapaugh saw fit to withhold from the keeper of the prison, the reported reason being that he was informed that some process from a State Court had been issued against Davis. On the 28th of March, Davis, having remained in prison, Mr. Pierrepont, then District Attorney, directed the Marshal to take Davis out of prison, and actually discharge him, which was done. On the 18th of May, 1869, Davis was arrested in the City of New York, upon a bench warrant from the United States Court, for the offence of perjury. He was soon after tried and convicted, and sentenced to five years imprisonment. The date of the sentence was July 1, 1869. Afterwards, application was made to the President, for a pardon, and, there being some doubt of his guilt, a pardon was granted in June last, as will appear from the records of the Department of State.— The requisition from this Office upon the Secretary of State bears date June 4, 1870. Very respectfully, your obd't serv't, A. T. Akerman Attorney General.