United States v. Thomas Morris. beyond its operation. But the power of pardon exists in the King independently of any act of the legislature. It is a prerogative power, and to be controlled by those rules which have been established to prevent its conflicting with the powers of the legislature. On the other hand the Secretary's power of remission is conferred on him by the same legislature from which the custom-house officers derive their rights. They who granted these officers their moiety of the forfeiture, had a right to provide, that under certain circumstances they should be deprived of it, and, in this case, they did so provide before their bounty was bestowed. Besides, the King's pardon is an act of mercy; it proceeds from his free grace, without being called forth by the merits of the offender. But the Secretary's power was vested in him for an entirely different purpose. He cannot exercise it unless he is satisfied of the innocence of the applicant. The party who asks for it, is as much entitled to it, if innocent, as he would be to ordinary justice if in a Court of Law. The Secretary of the Treasury is constituted a tribunal to proceed on evidence, in a prescribed manner, for the purpose of supplying the defective powers of the Courts. His power is analogous to that of a Court of Equity when revising the proceedings of a Court of common law. The cases of Jones v. Shorea and Van Ness v. Bue,b which are relied on to show that a condemnation vests the moiety of the officers so that it cannot be remitted, are not applicable here, as the interests of the parties there were entirely different. Besides, those cases decide no more than that the inchoate right of the collector, which arises upon seizure, becomes absolute by condemnation: but surely, not absolute so that the penalty cannot be remitted. 2. The replication is a departure from the declaration. A departure is when the second plea does not contain mat United States v. Thomas Morris. ter pursuant to the former, and which does not fortify it. And where general matter is pleaded at the commencement when the special matter might have been, the party shall not afterwards maintain the general matter with the special matter.d 3. The action is in a wrong name. The replication shows that the plaintiffs have no interest, and of course, no right of action. The custom-house officers had no right to sue in the name of the United States. Nor was there any necessity for it. If they have suffered a wrong by the conduct of the defendant, they could have brought an action in their own names for consequential damages. 4. The statute which allows a writ of execution to be issued into another district, does so only where "the judgment is obtained for the use of the United States." 5. By the judiciary acte it is made the duty of the District Attorney to prosecute all actions in which the United States shall be concerned. J. O. HOFFMAN, H. WHEATON, and E. PAINE for the plaintiffs, insisted 1. That the Secretary of the Treasury had no power to remit after condemnation. The words of the act may be considered as conclusive on this point. It authorizes the Secretary, when a fine, penalty, or forfeiture shall have accrued, to remit such fine, penalty, or forfeiture, and to direct any prosecution that may have been instituted for the recovery thereof, to be discontinued. Here is a connected phraseology, every word of which applies to a state of things before judgment, but not after. If a judgment has been recovered, the fine, penalty, or forfeiture has become a debt, and is not included within the legal signifi e Doctrina Placitandi: Title Departure, 119. Keble 124. d Willes, 638. Doct. Plact. 123. 121. 3 H. 7. 5. 37 H. 6. 5. Co. Lit. 204. a. Com. Dig. "Pleader." F. S. e Section 35. United States v. Thomas Morris. The cation of these terms. Nor after judgment, would the word accrue be applicable to a forfeiture. The forfeiture has not then merely accrued, it has been recovered. Nor does a prosecution extend beyond the judgment. When that is recovered, the rights of the parties have become fixed and settled; the law ceases to exert itself judicially, and only acts ministerially in the various steps of an execution. Recovery, too, can only mean the recovery of the forfeiture by a judgment. It is a mistake to suppose, that these words, and especially the word recover, are to be understood in an ordinary or familiar, in contradistinction to a legal or technical sense. subject to which they were applied is peculiarly a legal one, and the act is evidently the production of persons familiar with legal language. Such language, too, having a settled and specific meaning, would be preferred to words as used in their ordinary and uncertain acceptation. But the word recovery cannot, without violence, be made to mean any thing except a judgment. It is attempted to extend its signification to the act of the parties in receiving the penalty in the money realized under the execution. But this is not English in any sense. In common parlance, this would be called a receipt of the money, and not a recovery. A thing is ordinarily said to be recovered when the possession of it has been lost, but has been regained. And this is its only common signification. But in that sense, it could not have been used in this act. So that we are driven to the adoption of its legal or technical signification. And that can be nothing but the recovery of the judgment. Every subsequent step has its appropriate legal name. When the property is seized under execution, it is said to be levied upon, but not recovered. When the money is paid into Court by the officer, or paid over to the plaintiff, it is so said, but is never called a recovery of it. The connexion, too, of this word with the word prosecution, proves that it was used in its legal sense. The ment. United States v. Thomas Morris. last word discontinued can only apply to a suit before judgAn execution is said to be stayed. As the power of the Secretary, therefore, is conferred by language, which clearly contemplates a certain state of things, that power must cease, when such state of things is determined. But besides this manifest intention of the legislature, the operation of a judgment is such as to vest the rights of parties, and place them beyond the exercise of a power of this description. This has been expressly decided in the Cireuit Court for the first Circuit." And it has also been decided, as between successive Collectors, that the right to the forfeiture becomes vested when judgment is recovered, and before the receipt and payment over of the money.5 h It is the settled law of England, which must have been familiar to the framers of this act, that a pardon by the King does not affect the moiety of an informer, whose right has become vested by a judgment. So in prize proceedings, the crown cannot release captured vessels after condemnation.i It is contended, not only that these analogies apply to this case, but that the legislature knowing the effect of a judgment in this respect, in the country from which we derive our legal maxims and principles, would, had they intended that such maxims and principles should not be applied, have expressly said so, when they were providing for a power of remission with reference to a pending prosecution. 2. The causes of special demurrer, all depend on the main question, whether the Secretary had power to remit the officers' moiety. If he had not, then that moiety stands exactly as it did before the remission. So much of the judgment of f The Margaretta, 1 Gal. Rep. 515, 522. The Hollon, 4 Mason's Rep. 431. g Jones v. Shore. Van Ness v. Buel. h 3 Inst. 233. 5 Co. 51. a. 3 Mod. Rep. 56. Cro. Car. 357, 358. 1 Salk. Rep. 233, 234. 3 Inst. 238. Str. Rep. 1272. 5 Co. 51. b. Cro. Jac. 159. Cro. Car. 199. 5 Co. Lit. 51. b Cro. Car. 47. Parker 280. i5 Rob, Ad. Rep. 173. United States v. Thomas Morris. the United States remained unsatisfied, "whereof execution remained to be done." This moiety is, by the acts which allow it to the officers, vested in the United States, for the officers' benefit, until distribution be made. Those acts point out the course of its collection and distribution, and give the officers no right to it until that takes place. By the 91st section of the collection law, it is provided, that the moiety of the penalty shall be given to the Collector, Naval Officer, and Surveyor of the District; or, if there is but one of those officers, then to him; but if there was an informer, he is to have one-half the moiety, and the officers get only the other half. Here are rights to be settled and adjusted. And the 89th section directs the Collector to make the distribution. It is referred to him exclusively, to determine who are the officers of the District, and whether there is an informer. Under these circumstances would not this Court, had this action been brought in the names of the officers, have said, "you have no rights so settled that this Court can determine what they are, or whether all the proper parties are before it. Perhaps there is an informer who should have been joined with you. Whether there is, is a question for the Collector, or at least for the Court where the judgment was recovered. The suit should have been brought in the name of the United States, who have the only right which this Court can notice." If then, the Secretary could not remit this moiety, the United States are not merely trustees for the officers, to obtain it for them, but they have a direct interest that their officers should receive it, as a part of their compensation. If the Marshal neglects his duty, and does not levy under an execution upon the judgment, he is liable to those who have the legal property in the judgment, and to them only. The officers, besides, have something more conferred on them than the mere moiety k Collection Law, Sections 89, 91. Laws of U. S. ch. 195, sec. 18. (4 vol. p. 217.) Ib. ch.264, sec. 3, (4 vol. p. 306.) |