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United States v. Thomas Morris.

being heard from any quarter, until the one which has grown out of the present remissions.

A system of revenue laws must necessarily contain so many and such minute provisions, enforced by a corresponding number of penalties and forfeitures, as frequently to subject to difficulties the most upright and wary merchant, and expose his property to seizure and confiscation. That such cases must occur was early foreseen, and yet it was not thought proper to trust any Court with the power of acquittal founded solely on the innocence of the party."

If the tribunal having cognizance of the fact of forfeiture, might also have inquired into the quo animo, a sentence of confiscation would never have been pronounced, if the innocence of the claimant had been made out; and the present difficulty could not have occurred. And in such cases, if by newly discovered testimony his innocence might be made to appear even after judgment, it is perhaps not saying too much, that a Court would not have been unwilling (merely because the right of a collector had thereby become absolute,) to stay proceedings on its own sentence, and to vacate it altogether, if justice required it. At any rate, on an appeal, this testimony would be received, and the first sentence reversed.

The legislature, however, has thought proper, in order to arrive at the same end, to prescribe a different course. If the fact be made out, which, by law, produces a forfeiture, a Court is bound to pronounce sentence accordingly. But to have left the system here would justly have exposed the American government to the charge of injustice in making no discrimination between the innocent and guilty. Provision, therefore, was made to rescue property which might innocently become liable to forfeiture from the penal sanctions of the law.

a See the case of the brig William Gray, ante p. 16.

United States v. Thomas Morris.

By the 89th section of the collection law, the collector is enjoined to cause suits to be commenced for all penalties, and to prosecute them to effect, and is to receive from the Court the sums recovered, and on the receipt thereof, is to distribute the same according to law. The 91st section of the same act declares, that all fines, penalties, and forfeitures, recovered by virtue thereof, after deducting all proper costs and charges, shall be, one moiety for the use of the United States, and the other moiety for the collector, and certain other officers of the customs. This act passed March 2d, 1799. The first act regulating the collection of duties and containing a similar provision, passed 1st September,

1789.

Both these laws require of the Court, where the prosecution is depending, to hear and determine the cause according to law; which can only mean, that if the fact which works a forfeiture be proved, the Court must decide without reference to the innocence of the person to whom the forfeited article belongs.

From 1789 until 1797, no mitigating control was vested any where, unless the same resided in the President in virtue of his own constitutional right to grant reprieves and pardons for offences against the United States; and if under this authority these remissions had taken place, it might with reason be contended, even in the absence of any adjudged case that he could not, either before or after judgment, release the shares of the public officers.

On the 3d of March, 1797, after the hardships and injustice of the existing system must have been felt, in leaving liable to sequestration, property whose owner had been guilty of no wilful neglect or fraud, the legislature for the first time, confer on the Secretary of the Treasury the power in question. An act which then passed, authorizes him in a mode therein prescribed, to mitigate, or remit altogether,

United States v. Thomas Morris.

any fine, forfeiture, or penalty, or any part thereof, if in his opinion the same shall have been incurred "without wilful negligence or any intention of fraud, in the person or persons incurring the same," and to direct the prosecution, if any shall have been instituted for the recovery thereof, to cease and be discontinued, upon such terms or conditions as he may deem reasonable or just.

As this act was the first of the kind which had been passed, and not until the law for the collection of duties had been in force for several years, during which period many seizures for forfeitures had been made, it very properly contained a proviso, to prevent its affecting private rights or claims to any part of such forfeitures, in case a prosecution had been commenced, whether judgment were passed or not, before the passage thereof, or of any other act relative to such mitigation.

This proviso, while it bespeaks a solicitude in the legislature not to interfere with vested rights, shows that all claims founded on seizures made after the passing of such laws, were to be subject to the Secretary's examination, precisely in the same way with those of the United States. This act, which was temporary, was made perpetual by a law passed the 1st February, 1800.

It is impossible to peruse these acts without assenting at once to the liberality and justice of their provisions-nor can we forbear remarking that no limit is any where prescribed to the Secretary's power, as to the time when it shall be exercised, other than that it must be during the prosecution. The legislature thought it a sufficient spur to the interest, and an ample remuneration for the vigilance and labour of the custom-house officers, to leave undisturbed their participation in the fruits arising from every criminal violation of law, (if such expressions may be used.) But to permit them to divide the property of an unfortunate and innocent merchant, was considered as at war with the first principles of morality

United States v. Thomas Morris.

and justice. When a claim, therefore, of this nature is asserted, no Court can be blamed for looking at it with more than ordinary jealousy, nor for withholding its sanction so long as a reasonable doubt of its validity shall remain.

If goods are unladen from a vessel without a permit, of the value only of four hundred dollars, the vessel, whatever it may be worth, is absolutely forfeited. Now, after the government is satisfied of the entire innocence of the owners, and has remitted the whole penalty under a law in force at the time of seizure, can it be endured that a Collector shall be permitted to enforce his title to any part of it, merely because, after a few proclamations, rapidly succeeding each other, a Court has declared, which was never disputed, that a forfeiture had taken place? Is it right, is it just, is it honest, that it should be so?

Rather than lay hold of a technical term, which, after all, may not have been used in such sense, in support of a claim which has so little to recommend it, every disposition will be felt to give the law, if it can be done without a palpable violation of duty, such an interpretation as will best promote the benevolent and equitable intentions of the legislature, and will extend relief to every portion of the property, so long as it has not been converted into money, and paid to the Collector. It will not readily fetter itself with cases of doubtful application, nor consider a pardon and a remission under this act as convertible terms, nor impose on the latter the same restrictions and limitations which it has been thought proper to prescribe for the former. A pardon, as the very term imports, is an act of mercy and favour, and generally supposes its object guilty. A remission, on the contrary, is an act of justice, and cannot be obtained, until the entire innocence of the petitioner be established, not by testimony taken exparte, but after full notice to the proper officer of the government, and to the Collector who made the seizure.

United States v. Thomas Morris.

But it is said, that after a recovery, that is, after sentence of forfeiture, the power of remission may still apply to the share of the government, but cannot be exercised over the part claimed by the Collector and his associates.

No such distinction is found in the act. If such sentence be a bar to an interference with the share of these officers, it is not perceived why it should not also withdraw the case from the Secretary's cognizance, as it regards the interest of the public; for he has no better or larger right to release the latter, than the former.

But is the term recovery, on which so much stress is laid, of so much value and effect, and so very appropriate and inflexible in its meaning, as necessarily and absolutely to be li mited in its signification to the time of rendering judgment, and susceptible of no other signification whatever? The Court feels no obligation to attach so much importance to this term.

In the formal and solemn language of a common law record, it is considered that a party recover-and if the legislature had been speaking of proceedings in Courts of Common Law only, and no light had been afforded by other parts of the act, some argument might have been drawn from the use of that word. But as most of the proceedings to which this power applies are necessarily in rem and in the admiralty, in whose judgments or decrees in such cases this term never occurs, there is no reason for applying to it any other than its popular, ordinary, and vulgar meaning, which is to regain the possession of something which may have been lost or taken away, or to reduce to actual possession something to which we have or may assert a claim. Now a judgment has no such effect; it does not put the party in possession of the thing claimed. Nothing, therefore, is recovered within the meaning of this law, until it is "adjudged and received."

But this is not the only term used by which the Secretary's

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