In re William Mullee.

from those which occurred in the case submitted to the President. I am, therefore, of opinion, that, should the President consider the facts such as to justify the exercise of his constitutional power to grant reprieves and pardons for offences against the United States,' there is nothing in the character of this offence which withdraws it from the general authority."

In the case of Rowan, (4 Opinions of Attorneys General, 458,) in 1845, Attorney General Mason concurred in the opinion of Mr. Gilpin in the case of Dixon.

In the case of Drayton and Sears, (5 Opinions of Attorneys General, 579,) in 1852, Drayton and Sears had been indicted and convicted in the Criminal Court for the District of Columbia and county of Washington, under a statute, on seventy-four indictments, each of them founded on the transportation of a single slave. On these convictions Drayton was sentenced to be fined in the aggregate, with costs, $11,802.26, and Sears to be fined in the aggregate, with costs, $8,686.12. By the statute, one-half of the fine in each case was to be to the use of the master or owner of the slave, and the other half to the use of the county school or of the county. On the rendition of the judgments, Drayton and Sears were committed by the Court to prison until payment of the fines and costs adjudged against them respectively. In pursuance of that commitment they were imprisoned in 1848, and they were still in prison when, in 1852, an application was made to the President for their pardon. The question being referred to the then Attorney General, Mr. Crittenden, as to the constitutional power of the President to pardon the men and discharge them from the penalties and imprisonment therefor to which they were sentenced, he decided: (1.) That the pardoning power of the President extended over the whole case, and that by his pardon he might discharge them from prison and remit the fines for which they were imprisoned; (2.) That, if the President could not remit the fines because they had become private property, he could still pardon and release the offending parties from imprisonment, because such imprisonment was part of the proceedings against them as criminals,

In re William Mullee.

and at the instance of the United States, and was a thing distinct from any individual right of property in the fines; (3.) That the President might pardon the offence and imprisonment, with an exception or saving as to the fines, in which case the fines would remain as a debt to the United States, or to those to whom the United States had granted or transferred it, and would be recoverable accordingly by the appropriate legal remedies, which remedies the distributees of the fines would have if they were entitled to any absolute right or property in the fines. The statute, in the case of Drayton and Sears, imposed only a fine, and the commitment to prison was ordered by the Court to enforce the payment of the fines and costs. Mr. Crittenden examines the whole question with fullness, and adopts the view, that the imposition of the fines, into whosesoever pockets they might go when collected, was a punishment inflicted, on a public prosecution, for an offence against the United States, and must be regarded as having for its primary, if not its sole, purpose, the vindication of public law and public justice.

I have referred to this case of Drayton and Sears, because it was suggested, on the argument, that, in the present case, the pardoning power of the President could not be invoked, for the reason that, by the judgment of this Court, the fine imposed on the applicant is to be paid to the plaintiffs in the suit out of which the attachment proceedings arose. The judgment of this Court was, "that the said William Mullee has been guilty of a wilful and persistent disobedience to the order and injunction of this Court, and that he be fined therefor the sum of twenty-five hundred dollars, the same to be paid to the complainants towards the reimbursement of their expenses in and about such attachment proceedings, and that he stand committed until the said fine be paid." In this particular, the present case is like that of Drayton and Sears. The contempt of Court was an offence against the United States, and the fine was inflicted as a punishment therefor.

If the right to the fine should be regarded as a vested private right in the plaintiffs in the suit, existing in the

Smith v. Averill.

shape of a judgment, this Court would have no right to discharge it.

In view of the action of the Executive Department in the cases referred to, I must again refer the applicant to the President. If the President shall disclaim all right and power, as a part of his constitutional prerogative, to grant any relief in this case, the matter may be again brought before me.

JARVIS R. SMITH VS. OSCAR J. AVERILL.

Under the 89th section of the Act of March 2d, 1799, (1 U. S. Stat. at Large, 695,) and the 1st section of the Act of February 24th, 1807, (2 Id., 422,) the fact that a certificate of reasonable cause of seizure was made in a case where a judgment was given for the claimant of property seized, on the trial of the prosecution on account of the seizure, is no defence to an action brought by such claimant against the officer who seized it, to recover its value, where it has not been returned to such claimant.

It was not necessary for such claimant to demand the return of such property before bringing an action against the seizing officer to recover its value. Although the marshal took possession of the property when the prosecution was instituted, and held possession of it until the judgment was given, it was the duty of the seizing officer then to return the property.

(Before HALL, J., Northern District of New York, October, 1869.)

THIS was an action to recover the value of property seized by the defendant, as a collector of Internal Revenue, for an alleged violation of the Internal Revenue Act. The question of forfeiture was tried in the District Court, upon an information founded upon such seizure, and a verdict was found for the present plaintiff, who appeared as claimant in that proceeding; and thereupon a certificate of probable cause was granted by that Court. The property seized was placed in a warehouse, by the defendant's direction, soon after the seizure; and it still remained there at the time of the trial in this Court. The judgment of the District Court was, that the property had not been forfeited, and that it should be dis

Smith v. Averill.

charged, but it was never returned to the claimant, the present plaintiff, who was the lawful owner of all the property so seized. The warehouseman, who held the property seized, testified, on the trial, that he still held the same; that no one had been there to take possession of it; that he had charges against the defendant for holding and storing the property; that the United States marshal had never notified him that he had taken possession of the same; and that he had no notice from any one of such possession by the marshal. The defendant testified, that the property was taken in possession by the marshal, who showed him the order for taking possession of it, in May, 1868, and that he had never heard of or seen it since; but the other proofs showed that it had remained in the warehouse, where it was placed by the defendant's order, down to the time of the trial, and had never been removed by the marshal, if he ever took, or ever attempted to take, formal possession of the same. On the cross-examination of the defendant, he stated that he never saw the property after it was seized. The marshal's return to the warrant of arrest and monition stated, that he had attached the property and given the proper notices; but the proof showed that he had not removed it from the warehouse where it was deposited by the defendant's order, and there was no proof that he had in any way interfered with the possession of the property by the warehouseman, as the bailee of the defendant. A verdict was taken for the plaintiff, subject to the opinion of the Court.

Church, Munger & Cooke, for the plaintiff.

William Dorsheimer, (District Attorney,) for the defendant.

HALL, J. It will be assumed, for the purposes of the present controversy, that the return of the marshal is conclusive; and that, either by the endorsement and delivery to him of the warehouse receipt for the property, or otherwise,

Smith v. Averill.

he properly executed his process, and afterwards held the property under legal arrest until it was discharged by the judgment of the District Court, or that it was so held by the collector, after the marshal's seizure, as the legal custodian, under the Act of Congress.

The important question now to be determined is, whether the certificate of reasonable cause, granted by the District Court, is a good defence to this action, as the property seized was never returned, or offered to be returned, to the owner.

In a case of municipal seizure, like that complained of in this case, probable and reasonable cause is no defence, except where some statute creates and defines the exemption from damages. (The Apollon, 9 Wheaton, 362, 373.) But, in prize cases, the captors, if there be probable cause, are entitled, as of right, to an exemption from damages, (Id., 372, 373); and, therefore, decisions made in prize cases are of no authority in respect to the present question, which depends entirely upon the construction of Acts of Congress.

In this case, the exemption from damages is claimed under the 1st section of the Act of February 24th, 1807, (2 U. S. Stat. at Large, 422,) and the 89th section of the Act of March 2d, 1799, (1 Id., 695); and each of those sections contains a provision that the property seized must be returned. The provisions of those sections, in respect to the question now presented, are substantially the same; and that contained in the Act of 1807 reads as follows: "When any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares, or merchandise, made by any collector or other officer, under any Act of Congress authorizing such seizure, and judgment shall be given for the claimant or claimants, if it shall appear to the Court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the said Court shall cause a proper certificate or entry to be made thereof; and, in such case, the claimant or claimants shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor, be liable to action, suit, or judgment on account of such seizure and prosecution; Pro