The Secretary of the Treasury has authority under the Remission
Act of 3 March, 1797, c. 361 [lvii] to remit a forfeiture or
penalty accruing under the revenue laws at any time, before or
after a final sentence of condemnation or judgment for the penalty
until the money is actually paid over to the collector for
distribution.
Such remission extends to the shares of the forfeiture or
penalty to which the officers of the customs are entitled, as well
as to the interest of the United States.
Quaere whether an execution upon a judgment obtained in
the district Court of Maine could run into and be executed in the
Southern District of New York.
In a plea of justification by the marshal for not levying an
execution, setting forth a remission by the Secretary of the
Treasury of the forfeiture or penalty on which the judgment was
obtained, it is not necessary to set forth the statement of facts
upon which the remission was founded.
This was an action brought against the defendant in the court
below, as Marshal of the Southern District of New York, for a
misfeasance in neglecting to proceed on a
venditioni
exponas issued out of the District Court of the United States
for the District of Maine requiring him to sell the goods and
chattels of Andrew Ogden, Abraham K. Smedes, and Thomas C. Butler
which he had levied upon by virtue of certain executions issued
against them in favor of the United States on a judgment recovered
in the said District Court of Maine and which goods and chattels
remained in his hands for want
Page 23 U. S. 247
of buyers, according to his return on said executions. The
misconduct or neglect of duty alleged against the Marshal was that
he did not sell the property so levied upon according to the
command of the writ, but delivered the same up to the defendants
discharged from the execution. The declaration stated the judgment
to have been recovered in the September term of the court in the
year 1817 for $22,361.75 damages, and which, in part, to-wit, in
the sum of $11,180.87, remained in full force, not reversed, paid
off, or satisfied to the plaintiffs, and that execution to that
amount remains to be done. The
venditioni exponas, as was
alleged, was put into the hands of the marshal on 13 August,
1819.
The pleadings in the cause show that Andrew Ogden, of the City
of New York, in or about the month of June in the year 1813,
imported into Portland, in the District of Maine, certain goods and
merchandise in the brig
Hollen, which vessel, as well as
the goods, belonged to him. These goods, together with the brig,
were thereupon seized as forfeited to the United States on the
ground that the goods had been imported in that vessel in violation
of the nonintercourse acts then in existence. The goods and vessel
were libeled in the District Court of Maine on 6 July, 1813, and on
the 19th of the same month were delivered up to Andrew Ogden, after
having been regularly appraised, upon his having executed, together
with Abraham K. Smedes, and Thomas C. Butler, a bond for their
appraised
Page 23 U. S. 248
value. The vessel and goods were afterwards, on 27 May, 1817,
condemned as forfeited to the use of the United States. And such
proceedings were thereupon had that in the following September term
of the court, a judgment was entered upon the bond of appraisement
for $22,361.75, with costs.
The defendant, Morris, pleaded the general issue and a special
plea in justification that the forfeitures had been remitted by the
Secretary of the Treasury, setting out
in haec verba two
warrants of remission which were duly served upon him before the
return day of the
venditioni exponas, and averring a
compliance on the part of the defendants with all the terms and
conditions required by the warrants of remission. All which were
duly set forth in the return on the
venditioni exponas
before the commencement of the present suit.
To this special plea a replication was filed stating in
substance that at the time of the forfeiture, seizure, and
condemnation of the brig
Hollen and the goods imported in
her, and also at the time of their condemnation and the entering up
of the judgment on the bond for their appraised value and of the
issuing of the several writs of execution, and at the time of the
making and issuing the said warrants of remission and of the
service thereof on the defendant, &c., Isaac Ilsley, and James
C. Jewett were the collector and surveyor of the port of Portland,
and as such entitled to one-half of the said forfeiture, and that
the said several executions
Page 23 U. S. 249
were issued for their benefit, and solely to collect the said
sum of $11,180.87 for their own separate use, and that the
defendant had notice thereof when the said several writs of
execution were delivered to him to be executed, setting out, also,
two endorsements on the execution, one signed by the District
Attorney of Maine, notifying the defendant that the execution was
for the benefit of the said collector and Surveyor and directing
the Marshal to collect the same by their order. The other was
signed by the collector and surveyor, requiring the marshal to
collect the execution forthwith and deposit the money agreeably to
the command of the writ and notifying him that the property in the
execution was in them and directing him to receive orders from them
and from no other person whatsoever in whatever related to the said
execution. And it was then averred that the present suit was for
the purpose of enabling the collector and surveyor to recover their
damages for the injury they had sustained by reason of the
misfeasance of the defendant in the declaration mentioned, and not
for the benefit, use, or behoof of the said plaintiffs.
To this replication the defendant demurred specially and stated
the following causes of demurrer:
(1) For that the replication is a departure from the
declaration, in this that the declaration proceeds upon a cause of
action in favor of the United States; whereas the replication
proceeds upon a cause of action in favor of the said Ilsley and
Jewett, &c.
(2) For that the
Page 23 U. S. 250
replication discloses no lawful and sufficient authority for the
said I. and J. to prosecute the said action against the said T.M.,
&c., and in the name of the United States.
(3) For that the declaration proceeds upon the ground that the
several writs of execution therein respectively mentioned were
issued upon a judgment obtained for the use of the United States,
and therefore, according to the act in such case made, &c.,
might lawfully run and be executed in any other state or territory
of the United States than the said District of Maine in which the
said judgment was obtained. Whereas the replication discloses the
fact that the said judgment was not obtained for the use of the
said United States, but for the use and benefit of the said I. and
J., and, therefore, could not run and be executed in any other
state, &c.
(4) That the suit is prosecuted in the name of the United
States, by an attorney, on record, other than the District Attorney
of the United States for the Southern District of New York.
A joinder in demurrer having been filed, judgment was given for
the defendant in the court below and the cause brought by writ of
error to this Court.
Page 23 U. S. 281
MR. JUSTICE THOMPSON delivered the opinion of the Court, and
after stating the case, proceeded as follows:
The judgment of this Court being placed upon the validity of the
plea and the merits of the defense therein set up, it is
unnecessary particularly to notice any other questions that have
been discussed at the bar. To guard, however, against an inference,
not intended by the Court to be admitted, that the execution, in
this case was properly issued from the District Court of Maine to
the Marshal of New York, it is proper to observe that this must
depend on the construction to be given to the Act of Congress of 3
March, 1797, entitled, "An act to provide more effectually for the
settlement of accounts between the United States and the receivers
of public money." Independent of this act, it has not and certainly
cannot be pretended that an execution from the District Court of
Maine could run into any other state. The sixth section of that act
declares
"That all writs of execution upon any judgments obtained for the
use of the United States in any of the courts of the United States
in one state may run and be executed in any other state, but shall
be issued from and made returnable to the court where the judgment
was obtained. The pleadings in this case show conclusively that
although the
Page 23 U. S. 282
judgment is nominally in favor of the United States, yet it is
substantially and beneficially for the use of the custom house
officers of Portland and that the execution was issued solely and
exclusively for their benefit, and not for the use of the United
States. If it was necessary to decide this point, it might be
difficult to maintain that this case came within the true intent
and meaning of the act; but as the decision of the cause is put
upon a point more extensive in its practical application, this is
passed by without the expression of any opinion upon it. Nor is it
deemed necessary to notice any objections taken to the replication.
The argument has been confined principally to the plea, as being
the first error on the record."
The plaintiff having replied, without taking any exceptions to
the plea, he cannot now avail himself of any defect that would not
have been fatal on a general demurrer.
The objections to the plea may be considered under the following
heads:
1. That it does not set forth with proper averments the facts
and circumstances stated in the petition to the Secretary of the
Treasury and upon which the remission of the forfeiture was
granted.
2. That the Secretary of the Treasury had no power to remit
after condemnation.
The first objection supposes the case to fall within the rule
that where a justification is set up under a special or limited
authority, everything should be set out to show the case to be
Page 23 U. S. 283
within the jurisdiction of the authority whose protection is
claimed and relied upon.
It may be observed preliminarily that this objection, coming so
late, and at this stage of the cause, is not entitled to much
indulgence. If well founded, and it had been made at an earlier
day, the plea could have been amended and much expense and
litigation prevented. Every reasonable intendment, therefore, in
favor of the plea ought now to be made.
It by no means follows that in order to sustain this plea it is
necessary to show that it would have been held good on general
demurrer. For it is a rule founded in good sense and supported by
the settled doctrines of pleading that many defects are waived and
cured by pleading over that might have been fatal on demurrer.
But it is far from being admitted that this plea would not have
stood the test of a general demurrer. The defendant was a
ministerial officer, and placed in a situation in which he was
obliged to judge and determine whether to obey the command of the
execution, or that of the warrant of remission from the Secretary
of the Treasury. The latter is set out
in haec verba in
the plea, and upon its face refers to the law under which it was
issued, which was a public act, and in which warrant the Secretary
of the Treasury sets forth that a statement of facts, with the
petition of Andrew Ogden touching the forfeiture, had been
transmitted to him by the District Judge of the District of Maine
pursuant to the statute of the United States, entitled "An
Page 23 U. S. 284
act to provide for mitigating or remitting the forfeitures,
penalties, and disabilities accruing in certain cases therein
mentioned," as by the said statement of facts and petitions
remaining in the Treasury Department of the United States may fully
appear, and that, he having maturely considered said statement of
facts, it appeared to his satisfaction that the said forfeitures
were incurred without willful negligence or any intention of fraud,
and thereupon remitted all the right, claim, and demand of the
United States and of all others whomsoever upon certain conditions
therein specified. This warrant, therefore, upon its face contained
everything required by the law and which was necessary to bring the
case within the cognizance of the Secretary of the Treasury, and to
require anything more from a ministerial officer for his
justification would be imposing upon him great hardship.
This plea, by setting out the warrant at large, adopts and
asserts all the facts therein set forth, and must be taken as
alleging that a statement of facts had been made by the proper
officer and transmitted to the Secretary of the Treasury, and is
therefore an averment of that fact. It is not, to be sure, a
formal, but is a substantial, averment, which is nothing more than
a positive statement of facts, in opposition to argument or
inference.
It would be altogether useless and mere surplusage to set forth
such statement of facts in the plea; they would not be traversable.
It is not competent for any other tribunal collaterally to call in
question the competency of the evidence
Page 23 U. S. 285
or its sufficiency to procure the remission. The Secretary of
the Treasury is by the law made the exclusive judge of these facts,
and there is no appeal from his decision. The law declares that on
receiving such statement, he shall have power to mitigate or remit
such fine, forfeiture, or penalty or remove such disability or any
part thereof if in his opinion the same shall have been incurred
without willful negligence or any intention of fraud in the person
or persons incurring the same. The facts are submitted to the
Secretary for the sole purpose of enabling him to form an opinion
whether there was willful negligence or intentional fraud in the
transaction, and the correctness of his conclusion therefrom no one
can question. It is a subject submitted to his sound discretion. It
would be a singular issue to present to a jury for trial, whether
the facts contained in such statement were sufficient or not to
satisfy the Secretary of the Treasury, that there was no willful
negligence or intentional fraud. If the plea, by setting out the
warrant at large, contains, as I have endeavored to show, an
averment that a statement of facts had been transmitted to the
Secretary by the proper officer, as required by the law, it was all
that was necessary. This gave the Secretary cognizance of the case,
and which was sufficient to give him jurisdiction. But what effect
that statement of facts would or ought to have upon his opinion
whether the forfeiture was incurred without willful negligence or
any intention of fraud is a matter that could not be inquired
into.
But should any doubt remain on this point, it
Page 23 U. S. 286
is removed by the admissions in the replication, which begins by
saying that although true it is that the said William H. Crawford,
as such Secretary of the Treasury of the United States, did make
and issue the said warrants of remission as in the said plea of the
said defendant is alleged, yet, &c., proceeding to set out
facts and circumstances to show that the legal effect and operation
of such remission cannot take away the moiety of the custom house
officers, but affirming its validity as to the moiety of the United
States, and thereby admitting the authority and jurisdiction of the
Secretary of the Treasury and placing the avoidance of the
operation of the remission on the rights of the custom house
officers on a totally distinct ground. The only purpose for which
the statement of facts upon which the Secretary acted could be
required to be set out in the plea would be to show his
jurisdiction, and if the replication admits this, it must certainly
work a cure or waiver of the defect. It is laid down by Chitty,
Chitty on Plead. 547, and for which he cites adjudged cases which
support him, that as a defective declaration may be aided at common
law by the plea, so a defective plea may be aided in some cases, by
the replication. As if, in debt on bond to make an estate to A.,
the defendant pleads that he enfeoffed another to the use of A.
(which is not sufficient, without showing that A. was a party, or
had the deed), yet if the plaintiff reply that he did not enfeoff,
this aids the bar. So if the defendant plead an award without
sufficient
Page 23 U. S. 287
certainty, and the plaintiff makes a replication which imports
the award to have been made, it aids the uncertainty of the bar.
And this rule is not confined to matters of form merely, but
extends to matters of substance. Thus, in an action of trespass for
taking goods, not stating them to be the property of the plaintiff,
this defect will be aided if the defendant by his plea admits the
plaintiff's property. So where several acts are to be performed by
the plaintiff as a condition precedent, and he does not aver
performance of all, if it appear by the plea that the act omitted
to be stated was in fact performed, the defect is cured. 6 Binny
24; Chitty 402. We may, then, conclude that the plea is not, in the
present stage of the cause, to be deemed defective on account of
the first exception taken to it.
And the remaining and more important inquiry is whether the
Secretary of the Treasury had authority to remit the share of the
forfeiture claimed by the custom house officers. And this must
depend on the construction to be given to the act under which the
power was exercised. The authority of the Secretary to remit at any
time before condemnation of the property seized is not denied on
the part of the plaintiff, and it cannot be maintained that
Congress has not the power to vest in this officer authority to
remit after condemnation, and the only inquiry would seem to be
whether this has been done by the act referred to. 2 L.U.S. 585.
The present case ought not perhaps to be considered
Page 23 U. S. 288
altogether as a remission after condemnation. For it appears by
the warrant of remission that the statement of facts by the
district judge upon which the remission is founded bears date on 13
June, 1814, and the condemnation did not take place until May,
1817, and although the remission was not actually granted until
January, 1819, yet as the facts on which it was founded were
judicially ascertained three years before the condemnation, there
would be some plausibility in maintaining that the remission should
relate back to the time when the application was made to the
Secretary. But we think a broader ground may be taken, and that the
authority to remit is limited only by the payment of the money to
the collector for distribution.
It may safely be affirmed that the question now presented has
never received any judicial decision in this Court. Nor has any
case been cited at the bar or recollected by the Court to have been
decided here containing any principle at variance with the
construction of the act now adopted.
In the case of
Jones v. Shore's
Executors, 1 Wheat. 462, no such question was
involved. The United States there asserted no claim. Nor had the
Secretary of the Treasury exercised any authority under the act in
question. The money was in court for distribution, and the sole
question before this Court was whether the then collector and
surveyor were the actual incumbents in office or the
representatives of the late collector and surveyor, in right of
their testator,
Page 23 U. S. 289
and intestate, were entitled to the money, and it was decided in
favor of the latter. The same principle governed the case of
Van Ness v.
Buel, 4 Wheat. 75. But these cases decide no more
than that the right of the custom house officers to forfeitures
in rem attaches on seizure, and to personal penalties on
suits brought, and in each case this right is ascertained and
consummated by the judgment as between such officers and the party
who has incurred the forfeiture or penalty. But they decide nothing
with respect to the right or the control of the United States over
such penalties and forfeitures. The rights and interests of these
officers must necessarily be held subordinate to the authority of
the United States over the subject. And that such is the light in
which they are viewed is evidence from what fell from the Court in
the case of
Gelston v.
Hoyt, 3 Wheat. 319. It is there said the seizing
officer is the agent of the government from the moment of the
seizure up to the termination of the suit. His own will is bound up
in the acts of the government in reference to the suit. By the very
act of seizure, he agrees to become a party to the suit under the
government, for in no other manner can he show and authority to
make the seizure or to enforce the forfeiture. If the government
refuse to adopt his acts or waive the forfeiture, there is an end
to his claim; he cannot proceed to enforce that which the
government repudiates.
It is not denied but that the custom house officers have an
inchoate interest upon the seizure,
Page 23 U. S. 290
and it is admitted that this may be defeated by a remission at
any time before condemnation. But if this is not the limitation put
upon the authority to remit by the act giving the power, it is
difficult to discover any solid ground upon which such limitation
can be assumed. If the interest of the custom house officers before
condemnation is conditional and subject to the power of remission,
the judgment of condemnation can have no other effect than to fix
and determine that interest as against the claimant. Those
officers, although they may be considered parties in interest, are
not parties on the record, and it cannot with propriety be said
they have a vested right in the sense in which the law considers
such rights. Their interest still continues conditional, and the
condemnation only ascertains and determines the fact on which the
right is consummated should no remission take place. This is
evidently the scope and policy of the laws on this subject. The
forfeiture is to the United States, and must be sued for in the
name of the United States. 3 L.U.S. 221, s. 89. It is made the duty
of the collector to prosecute, and he is authorized to receive the
money, and on receipt thereof is required to distribute the same
according to law. In all this, however, he acts as the agent of the
government, and subject to the authority of the Secretary of the
Treasury, who may direct the prosecution to cease. And the act
creating the right of the custom house officers to a portion of the
forfeiture does not
Page 23 U. S. 291
vest any absolute right in them until the money is received (s.
91). It declares that all fines, penalties, and forfeitures
recovered by virtue of this act shall, after deducting all proper
costs and charges, be paid, one moiety into the Treasury and the
other moiety divided between the collector, naval officer, and
surveyor.
No part of the act warrants the conclusion that the right of
these officers becomes absolute by the condemnation. But on the
contrary, the plain and obvious interpretation is that the right
does not become fixed until the receipt of the money by the
collector. Unless, therefore, the act under which the remission is
allowed, 2 L.U.S. 585, limits the authority of the Secretary of the
Treasury to the time of condemnation, the custom house officers
have no right to question the remission. That the act does not, in
terms, so limit the power is very certain; nor is such a
construction warranted by the general object and policy of the law,
which is intended to provide equitable relief where the forfeiture
has been incurred without willful negligence or intentional fraud.
It presupposes that the offense has been committed and the
forfeiture attached according to the letter of the law, and affords
relief for inadvertencies and unintentional error. And why should
such relief be foreclosed by the condemnation? The law was made for
the benefit of those who had innocently incurred the penalty, and
not for the benefit of the custom house officers. If any
prosecution has been instituted, the Secretary has authority to
direct it to cease
Page 23 U. S. 292
and be discontinued upon such terms or conditions as he may deem
reasonable and just. This enables him to do ample justice to the
custom house officers, not only by reimbursing all costs and
expenses incurred, but rewarding them for their vigilance and
encouraging them in the active and diligent discharge of their duty
in the execution of the revenue laws.
But to consider their right to a moiety of the forfeiture as
absolute and beyond the reach of the law after condemnation would
be subjecting the innocent to great and inequitable losses,
contrary to the manifest spirit and intention of the law. The
Secretary is authorized to direct the prosecution to cease and be
discontinued. This undoubtedly gives him a control over the
execution. The suit or prosecution does not end with the judgment,
but embraces the execution, and it has so been considered by this
Court at the present term. And that such is the sense in which the
term prosecution is used in these laws is evident from the 89th
section of the Collection act, where the collector is required to
cause suits to be commenced and prosecuted to effect. But the
prosecution would be to very little effect unless it extended to
and included the execution. The provision in the third section of
the act, under which the remission is allowed, affords a very
strong inference that the rights of the custom house officers are
conditional and subordinate to the authority to remit. It declares
that nothing herein contained shall be construed to affect the
right or claim of any person to that part of any
Page 23 U. S. 293
fine, penalty, or forfeiture to which he may be entitled when a
prosecution has been commenced or information has been given before
the passing of this act or any other act relative to the mitigation
or remission of such fines, penalties, or forfeitures, thereby
clearly showing, that before such power to remit was given, the
right of the custom house officers attached upon the commencement
of the prosecution, and could not be devested, but that such right
was now modified and made conditional. This provision is contained
in the first law which passed in the year 1790, 2 L.U.S. 103,
giving authority to the Secretary of the Treasury to remit
penalties and forfeitures. This act was temporary, but continued
from time to time until 8 May, 1795, when it expired, and was not
revived until March, 1797, leaving a period of two years when the
power to remit was not vested in the Secretary of the Treasury, and
to which period the provision in the third section of the act of
1797 probably refers.
The powers of the Secretary of the Treasury have been supposed
analogous to those of the commissioners of the Customs in England
under the statute 27 Geo. III, c. 32. s. 15. But it is very obvious
on reference to that statute that the authority of the
commissioners to remit was limited to the condemnation. These
powers were afterwards, by statute 51 Geo. III, c. 96, extended,
but still limited to remissions before condemnation. It was
probably not deemed advisable to confer more enlarged powers
Page 23 U. S. 294
upon the commissioners of customs, but that a power somewhere to
remit after judgment of condemnation was proper and necessary, and
accordingly by statute 54 Geo. III, c. 171. This power is
transferred to the commissioners of the Treasury. The two former
acts are recited, and the recital then proceeds thus:
"Whereas it is expedient that the provisions of the said acts
should be further extended and that the commissioners of his
Majesty's Treasury should be empowered to restore, remit, or
mitigate any forfeiture or penalty incurred under any laws relating
to the revenue or customs or excise or navigation or trade, either
before or after the same shall have been adjudged in any court of
law or by or before any commissioner of excise or Justice of the
Peace,"
and it is then enacted that the commissioners of the Treasury
may order any goods seized as forfeited to be restored on the terms
and conditions mentioned in the order, and may mitigate or remit
any penalty or forfeiture which shall have been incurred under the
revenue laws, and upon such terms and conditions as to costs or
otherwise as under the circumstances of the case shall appear
reasonable.
The enacting clause in this statute is general, like our act. It
does not in terms give the power to the commissioners of the
Treasury to remit after condemnation, and yet there can be no doubt
the power extends to such cases, and if this be so, what becomes of
the rights of informers, which have been supposed to become, by the
judgment of condemnation,
Page 23 U. S. 295
so vested, as not to be devested even by a pardon.
The powers given by this statute to the commissioners of the
Treasury are very analogous to those given by our act to the
Secretary of the Treasury, and the phraseology employed to confer
such powers in nearly the same in both. Neither the one nor the
other in terms extends the power to remission after condemnation,
and there can be no reason why the same construction should not be
given to both. No vested rights of informers or custom house
officers are violated in either case. These rights are conditional,
and subordinate to the power of remission, and to be provided for
in the terms and conditions upon which the remission is
granted.
The practical construction given at the Treasury Department to
our act has not been particularly inquired into. It is understood,
however, that until within a few years, remissions were granted as
well after as before condemnation, but that latterly this power is
not exercised after condemnation, nor will the remission be granted
before condemnation unless the petitioner will admit the forfeiture
has been incurred. This practice is probably founded on the
impression that the equitable powers of the Secretary ought not to
be interposed until the legal guilt of the petitioner is
ascertained. But the rights of the custom house officers would seem
to be as much affected under such a practice as to remit after
condemnation. Those rights are said to be inchoate by the seizure
and to be consummated
Page 23 U. S. 296
by the condemnation. The confession of the forfeiture before
condemnation, remaining on the record of the Treasury Department,
although not a judicial condemnation, might well be said to
consummate the rights of the custom house officers if they are to
be considered as becoming absolute when the forfeiture is
ascertained. The condemnation does no more than to determine that
question so far as respects the rights of those officers, for the
condemnation is not to them, but to the United States; they are no
parties to the judgment, and their rights must depend upon and be
governed and controlled by the acts of Congress which create and
regulate such rights, and by these acts, those rights, in the
opinion of the Court, do not become fixed and absolute by the
condemnation, but are subject to the power of remission by the
Secretary of the Treasury until the money arising from the
forfeiture is received by the collector for distribution. The
warrant of remission, therefore, in this case, when served upon the
marshal, operated as a supersedeas to the execution and justified a
discharge and restoration of the property levied upon, and
exonerates him from all claim to damages by the custom house
officers.
MR. JUSTICE JOHNSON.
I entirely concur with my brethren in the opinion that the power
of the Secretary to remit extends as well to cases after as before
judgment rendered. The question is one which I have had to consider
repeatedly in my circuit, and which I so decided more than
Page 23 U. S. 297
twelve years ago. The reasons on which I then founded and still
adhere to this opinion were briefly these:
I consider the contrary doctrine as neither consistent with the
words nor the spirit of the act of 1797. The unavoidable
consequence of it would be that the suitor for grace is shut out of
every legal defense, and it would be difficult to assign a reason
why justice should be refused by the hand that tenders mercy. Many
defenses are not only consistent with the claim for remission, but
furnish in themselves the best ground for extending the benefit of
the act to the party defendant. He who supposes his case not to
come within the construction of a law, or that the law is repealed,
expired, or unconstitutional, cannot be visited with moral offense,
either in the act charged or the defense of it. Yet how is the
question of right ever to be decided unless he is permitted to try
the question before a court of law? In such a case, pertinacious
adherence to his offense cannot be imputed to him, since resisting
the suit on the one hand, while he sues for remission on the other,
amounts to no more than this -- that he denies having violated the
law; but if the court thinks otherwise, he then petitions for grace
on the ground of unaffected mistake, a point on which, of course,
he must satisfy the Secretary, before he can obtain a
remission.
If the question be tested by the letter of the law, it will be
found, I think, to lead to the same conclusion. The words are
"Whenever any
Page 23 U. S. 298
person who shall have incurred any fine, penalty, forfeiture, or
disability or shall have been interested in any vessel, goods,
wares, or merchandise, which shall have been subject to any
seizure, forfeiture, or disability by force of any present or
future law of the United States for laying or collecting any duties
or taxes, or by force of any present or future act concerning the
registering and recording of ships or vessels, &c., shall
prefer his petition to the judge of the district in which such
fine, penalty, forfeiture, or disability shall have accrued, truly
and particularly setting forth,"
&c., then, &c., the power of remission may be exercised
by the Secretary, and the prosecution if any, ordered to be
stayed.
On perusing this act it must be conceded that the terms are
sufficiently general to extend the powers of the Secretary without
limit to the cases of fine, forfeiture, or disability occurring
under the several laws specified. The limitation therefore must be
sought for either in some principle of construction or in some
principle
aliunde which is competent to impose such
limitation.
But with a view to construction, there will be found several
considerations calculated to extend the power granted to cases
wherein judgments have been obtained, rather than to restrain it to
any preexisting state of things. If the question be tested by the
technical signification of the terms, in strictness the power would
be confined to cases in which judgment had been obtained, rather
than to those of a contrary description.
Page 23 U. S. 299
Fines, penalties, and disabilities are not incurred and do not
accrue in the technical sense of the terms until judgment. With
regard to disabilities particularly (and there is no discrimination
made between the cases), I would notice that disqualification to
hold any office under the United States which is imposed upon a
smuggler for seven years. Who can question that it must be counted
from the day of judgment, and not from the day of the offense or
information? Or who can suppose that it could be made a plea to the
authority of a public officer at any time before conviction?
But with regard to fines and forfeitures also there are various
provisions of the United States laws which look positively to a
trial as necessary to determining whether such fines and
forfeitures have been incurred. I would notice particularly the
29th section of the Collection Law of 1799, under which incurring
the penalty for the offense there stated is made to depend upon the
master's not being able to satisfy the court, by his own oath or
other sufficient testimony, of certain facts which in the given
case prevent his incurring the fine.
So also of the 67th section of the same law, in which a
forfeiture is made to accrue upon a state of facts which positively
requires the intervention of a court of justice and which, of
consequence, cannot be said to have been incurred or accrued until
judgment.
But other considerations present themselves upon this law which
lead to the same conclusion.
Page 23 U. S. 300
The words are, "shall prefer his petition to the judge of the
district in which such fine, penalty, forfeiture, or disability
shall have accrued." That this word "accrued" meant something more
than the term "incurred," used in the previous part of the section,
is obvious from this consideration, that an offense might be
committed in one district and the offender prosecuted in another;
but it never was imagined that the suit for remission could be
going on in the district where the penalty was incurred, in one
sense of the term, and the prosecution in another. The term
"accrued," therefore, has been universally held to be here used
with relation to the seizure, information, or suit for the penalty,
and so far from its being held to have any effect in confining the
time of prosecuting this claim for remission to the interval
between information and judgment, that practically we know, in some
of the most commercial districts, the construction adopted was that
the penalty did not accrue until conviction, and hence suffering a
decree or judgment to pass was considered as essential to making up
the case in which the suit for remission might be preferred. And
there was some reason for this practice, since the necessary
meaning of the term, as distinguished from the word "incurred,"
shows that there could hardly ever occur a case in which the suit
for remission was not preceded by the suit for the penalty. But if
the defendant was compelled to confess that he had violated the
law, and so the act requires, what reason could exist why judgment
should not forthwith
Page 23 U. S. 301
pass against him? And if, under such circumstances, the judgment
was a bar to the remission, the boon held out to them was all a
fallacy -- nay, more, it was a lure to ensnare him, for the law
imposes no obligation on the judge to stay proceedings, and whether
he would or not rested with him or with the district attorney until
the Secretary should have time to act upon the application for
remission.
The replication, however, exhibits the true ground on which the
real plaintiff in this suit is compelled to rest his case, which is
that by virtue of the judgment, certain rights were vested in him
over which the remitting power of the Secretary does not extend. In
making up this replication, the party ought to have felt the real
difficulties of his case. It is generally true that the rules of
pleading furnish the best test of a right of action. The effect in
this case was to introduce a new personage into the cause, and if I
were disposed to get rid of the question on a technical ground, I
should find no difficulty in coming to the conclusion that there is
a departure in this plea, and he has abated his writ. How in fact
the name of the United States comes at all to be used in this cause
is to me a mystery. The very policy of the law in this part of its
revenue system is avoided by it, and would be frustrated if the
practice could be countenanced. That the name of the United States
should be used against its will and an attorney for the United
States nominated by a judge to act where the attorney of the
United
Page 23 U. S. 302
States refuses to act, and that without any authority by
statute, I acknowledge has excited my surprise.
The principles asserted are that an absolute interest is vested
by law in the collector; that the United States is the trustee to
their use; that the act of the trustee shall not defeat the
interests of the
cestui que use, and that he shall have
the use of the trustee's name to vindicate his rights, that too in
an action for damages.
The whole of this thing appears to me to be wrong. If the right
was an absolute, substantive, individual right, why was not the
suit brought in the name of the collector? If his interest is only
an equitable interest, by what known rules of pleading can he avail
himself of his mere equitable interest in a suit at law? -- or
rather can he make his appearance as party in the suit instituted
by his trustee? -- and that too, a suit for damages? It all results
in a strong attempt to modify the operation of our laws and to
regulate the rights and powers of our officers by some fancied
analogy with the British laws of trade and British revenue
officers.
Our system is a peculiar system, and nothing is clearer to my
mind than that in many particulars it is constructed with a view to
avoid that very analogy which is here set up and those consequences
and embarrassments which might grow out of it. In the instance
before us, relief was to be provided for a case of misfortune and
of innocence, and nothing could have been more absurd than to
suffer the vested rights of informers
Page 23 U. S. 303
and seizing officers to embarrass the government in its
benevolent and just views towards the objects of this law. Mercy
and justice could only have been administered by halves if
collectors could have hurried causes to judgment and then clung to
the one-half of the forfeiture in contempt of the cries of distress
or the mandates of the Secretary. Hence, according to our system,
all the suits to be instituted under the laws over which the
Secretary's power extends are commenced in the name of the United
States. No other party is permitted to sue; they are all made
national prosecutions; all the legal actors are those who are bound
in obedience to the government that prosecutes.
Nothing is more untenable than the idea that at any one stage of
the prosecution, the government assumes the character of a trustee
-- an idea so abhorrent to the principles of the common law that to
make the King a trustee was to make him absolute proprietor. Nor is
it until the character of prosecutor for offenses against itself is
put off that the law raises a state of things in which the relation
of trustee and
cestui que use actually can arise. This is
when the money is paid into the hands of the collector. To him the
law directs that it shall be paid in order that it may be
distributed. What right, I would ask, would any one of the
distributees here have to move the court that the money be paid to
him, and not to the collector? There are cases in which other
persons than a collector may be entitled in the capacity of
informers, and it may then be necessary for the
Page 23 U. S. 304
court to decide on individual rights. But in no case that I am
aware of arising under the collection law can the court be called
upon to pay the money in any other way than to the collector, to be
by him distributed, and this distribution I consider as a mere boon
from the government, which they may justly, and do practically
reserve a sovereign control over, until so paid under their laws.
The gift is from them, of a thing perfected to them, and they may
modify and withdraw that gift, ad libitum. When once paid away,
according to legislative will, their control is at an end, and the
right then, and not till then, becomes vested and absolute, as
between them and their officers, whom, to the last, the law regards
as absolute donees. That such is the view of the legislature, and
that in the exercise of that discretion, they still meant to be
reasonable and just, and not to exercise an
ex post facto
power in such case, is all conclusively proved in the third section
of this act, as has been very justly insisted on in argument.
During two years, this power of the Secretary had remained
suspended, and with regard to rights accruing during that time, the
legislature declares that as the modification imposed upon the
grant to the informer, or seizing officer, by virtue of that
dispensing power, did not then exist, their proportions should not
afterwards be subjected to it, but the court may assess their
proportions in a summary manner. There cannot be a more explicit
declaration of legislative understanding than this clause presents,
inasmuch as it makes no discrimination
Page 23 U. S. 305
between the cases of judgment and other cases, but considers the
right accruing to them the same before judgment as it is after.
There is one peculiarity in this case which, in my opinion,
precludes the possibility of recovery independently of the general
principle, which is that this action is brought against the marshal
for not executing process issuing from another state. It certainly
presents a dilemma from which I think it impossible for the party
plaintiff to escape. The right to issue such process originates in
the 6th section of the "Act more effectually to provide for the
settlement of accounts between the United States and receivers of
public money," by the words of which the power is explicitly
confined to the case of executions on judgments obtained for the
use of the United States.
The real plaintiff here, then, is reduced to this alternative:
either the judgment was for his use or it was not. If not for his
use, then he cannot be damnified by the defendant in refusing to
execute it. But if for his use, it cannot be for the use of the
United States, and then the execution issued wrongfully and was
rightfully disobeyed. If it be replied that the judgment in the
first place was obtained for the use of the United States, it only
brings us back to what I before observed -- that so entirely is
this true as to raise no vested right in anyone on the solitary
ground of an eventual contingent interest.
Judgment affirmed.