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States, except at the suit of the United States, in any CHAP.2. civil action, against whom judgment has been or shall be recovered, shall be entitled to the privileges and relief provided by this act, after the expiration of thirty days from the time such judgment has been, or shall be recovered, though the creditor should not, within that time, sue out his execution, and charge the debtor therewith."

This section, it will be seen, is intended to provide for the case of imprisonment of the debtor, on mesne process, or on surrender by bail, and the omission by the plaintiff to charge him in execution.

By the supplementary acts of January 7, 1824, and of April 22, 1824, it is provided that the oath prescribed by the act of 1800 may be administered, either by any judge of the supreme court of the United States, or by the district judge for the district in which the debtor may be, or by any person commissioned by either of such judges, for that purpose; and that the person or persons so commissioned, shall have full power and authority to issue a citation, directed to the creditor, his agent or attorney, if either live within one hundred miles of the place of imprisonment, requiring him to appear at the time and place therein mentioned, if he see fit, to show cause why the said oath or affirmation should not be administered; and further that if the creditor or his agent or attorney, lives within fifty miles of the place of imprisonment, only fifteen days' notice shall be required.

'Ch. 3: 4 Stat. at Large, p. 1.

'Ch. 39: id., p. 19.

PART 6.

CHAPTER III.

OF PROCEEDINGS FOR THE MITIGATION OR REMISSION

OF FINES, PENALTIES, FORFEITURES AND DISABILI-
TIES.

The laws of the United States regulating commerce and navigation, like those of all commercial nations, are necessarily rigorous in their exactions, and highly penal. They require the performance of certain acts, and prohibit certain others; and inflict forfeitures and penalties for the non-observance of their injunctions, without regard in general, to the motives of the offender.

But however necessary such a code of legislation may be in this particular instance, to regulate the conduct of the subordinate ministerial officers of the government, and even the decisions of judicial tribunals, its inflexible enforcement without the right of appeal to some dispensing power, would sometimes lead to intolerable injustice. Congress accordingly, by a series of temporary acts, passed soon after the organization of the government, provided a mode of relief in such cases, by authorizing the secretary of the treasury, upon a proper application to him for that purpose, to mitigate or altogether to remit the penalties of these laws, when from the facts of the case, first judicially ascertained, he shall be of opinion that such penalties "have been incurred without willful negligence or any intention of fraud."

The last of these acts, is that of March 3, 1797.1 It was limited to two years, but was declared perpetual by the act of Feb. 11, 1800. It is entitled "An

'Ch. 13: 1 Stat. at Large, p. 506.

2

"Ch. 6: 2 id., p. 7.

act to provide for mitigating or remitting the forfei- CHAP. 3. tures, penalties and disabilities, accruing in certain cases therein mentioned;" and it is still valid and operative with respect to all cases embraced by its terms, except those in which the fine, penalty, or forfeiture does not exceed fifty dollars in amount or value, for these cases a simpler course of proceeding has been prescribed by a later act, which will be more particularly mentioned in the sequel.

The first section of the act of 1797 is as follows:

"That whenever any person or persons 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 the laying, levying, or collecting any duties or taxes, or by force of any present or future act, concerning the registering and recording of ships or vessels, or any act concerning the enrolling and licensing ships or vessels employed in the coasting trade or fisheries, and for regulating the same, 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 the circumstances of his case, and shall pray that the same may be mitigated or remitted, the said judge shall inquire in a summary manner into the circumstances of the case; first causing reasonable notice to be given to the person or persons claiming such fine, penalty or forfeiture, and to the attorney of the United States, for such district, that each may have an opportunity of showing cause against the mitigation or remission thereof; and shall cause the facts which shall appear upon such inquiry, to be stated and annexed to the petition, and direct their transmission to the secretary of the treasury of the United States, who shall thereupon have power to mitigate or remit such fine, forfeiture

'Such, for example, as the incapacity to hold any office under the United States for the period of seven years, inflicted by the fiftieth section of the collection act of March 2, 1799 (Ch. 22: 1 Stat. at Large, p. 665), for a violation of its provisions.

PART 6. 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, and to direct the prosecution, if any shall have been instituted for the recovery thereof, to cease and be discontinued, upon such terms and conditions as he may deem reasonable and just."

1

This act, it will be seen, extends to liabilities incurred by force of all future, as well as existing laws of the description therein mentioned.

With regard to the persons who have a right to petition, and the time at which such right accrues, the act is sufficiently explicit.

It will readily be seen, also, that in all cases in which, by the act, the secretary of the treasury is authorized to grant relief, he is invested with unlimited discretion as to the extent of the relief, and as to the terms and conditions upon which prosecutions, where they have been instituted, shall be stayed or discontinued. He has authority, therefore, to remit as well the share of the fine, penalty, or forfeiture to which the officers of the customs, or an informer, are by law entitled, as that which belongs to the United States.

The act contains no limitation in point of time, of the right of petitioning or of power of remission; but, from the nature of the case, some such limitation must exist. This is a point which has led to very earnest discussions; but, so far at least as the interests of the officers of the customs or of informers are concerned, may now be considered as definitively settled by the case of The United States v. Morris (10 Wheat., 246); which, though it relates immediately to a

1 The second section of this act invests the state court with all the powers conferred by the first section, on the district judges of the United States.

forfeiture, is doubtless equally applicable to pecuniary CHAP. 3. fines and penalties. The question in that case was, whether by a judgment or decree of condemnation against property seized for a violation of the non-intercourse laws of the United States, the rights of the officers of the customs to a moiety of the value of such property had become absolute and fixed, so as no longer to be subject to the power of revision by the secretary of the treasury. After a very able argument at the bar, and an elaborate and luminous examination of the question by the court, it was decided that the power of remission continued until the actual receipt of the money arising from the forfeiture by the collector for distribution.

It will be perceived, however, that this decision, in fixing the limits beyond which the power of remission can no longer be exerted, applies in terms only to the shares of the officers of the customs, and not to the interest of the United States. The question may, therefore, perhaps, still be considered as open for discussion, whether so far as this interest is concerned, the secretary of the treasury may not remit at a still later stage of the transaction.

It will doubtless occur to the reader that the rule established by this case authorizes a remission after, as well as before a sale, by the marshal of the petitioner's property, provided the proceeds have not been paid over for distribution to the collector. It is presumed, however, that the supreme court did not contemplate any interference with the title acquired by the purchaser at such sale; but intended, in case of such subsequent remission, not that the property of the petitioner should be restored, but that the proceeds of it, or such portion thereof as might be remitted, should be paid over to him.

In a case highly favorable to the petitioner, and

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