United States V. Morris. 1825. forfeiture has, for certain purposes, relation back to the commission of the offence. As between the offender and all persons claiming as purchasers of the property, and the government, the forfeiture attaches at the moment of delictum." But this proceeds from the necessary strictness of all fiscal regulations, and does not prevent a remission before condemnation. The delictum does, indeed, devest the proprietary interest from the owner, so as to overreach the claims of subsequent purchasers; but it does not, therefore, follow, that the share to which the officers of the customs may become entitled, vests in them co instanti. Their title may never vest, by reason of three contingencies: (1.) There may be no seizure. (2.) There may be a remission after the offence, and before condemnation. (3.) There may be no condemnation. If there be no seizure, of course no title vests. If there be a remission before condemnation, as no title has yet vested except against subsequent purchasers, it purges the offence entirely, by relation back to the delictum. If there be no condemnation, the inchoate title is never ripened into maturity. But if there be a remission after condemnation, the rights of the seizing officers have become absolute, and the remission purges the offence (if it has any effect at all) only so far as the government is concerned. This would appear from the plain reading of the Collection Act of 1799, c. 128. [cxxviii.] a 8 Cranch's Rep. 398. 417. ss. 89, 90, 91. which directs the Collector to prosecute for breaches of the revenue laws, and to receive the sums recovered, and to pay and distribute the same among the different persons entitled. It must be admitted, on all hands, that the right must absolutely vest at some period. The Court have already rejected the notion that it does not vest until the actual receipt and payment over of the money." There could, therefore, be no other epoch but that of the sentence of condemnation, which, if definitive, or unappealed from, fixes and ascertains the rights of all parties. Admitting, for the sake of the argument, that the government may afterwards remit, so far as its own rights are exclusively concerned; it cannot certainly be concluded, from the terms of the Remission Act, that the government intended to revoke its bounty, conferred absolutely upon its officers by a solemn statute for great purposes of public policy. It is immaterial what the Secretary of the Treasury intended to do. The question is, what was he authorized to do by the law under which he acted. All the analogies of the common law would be found to repel the idea that the remission could devest the rights which had become ascertained and fixed by the sentence of condemnation. Pardon and remission are synonymous terms, and their legal effect upon the rights of parties must be the same. "Pardon" is defined to be "a work of mercy, whereby the king forgiveth any a Jones v. Shore, 1 Wheat. Rep. 470. 1825. United States V. Morris. V. Morris. d 1825. offence, &c. right, title, debt, or duty." The power which is given to the President by the constitution, of granting pardons for offences may, or may not, extend to revenue cases; but whether the pardon is granted by the President, or by his minister, is immaterial. It is still the act of the government, and it can have no greater effect in the one case than in the other. It is laid down that a pardon does not discharge the thing in which the subject has a property or interest; as if a suit be in the Spiritual Court for tithes, a legacy contract, or matrimony, &c.' or for dilapidation. So, if an incumbent accepts a plurality, the interest of the patron to present is not discharged by a general pardon. A penalty, upon a conviction for deer stealing, is not discharged by a pardon; for it is a forfeiture to the party grieved. The king cannot, by his pardon, discharge an action commenced qui tam upon a penal statute, except for the king's moiety or part! Nor penalties to be divided between the informer and the poor of the parish. So a pardon does not discharge a thing consequent or incident in which the subject has an interest vested in him; as costs taxed in the Spiritual Court, a pardon of the offence does not discharge the costs. And this, though the party appeals after the taxation of costs, so that the sentence is suspended by the appeal. So, if the party appeals a 3 Inst. 233. b 5 Co. 51. a. e 1 Salk. Rep. 233, 234. f 3 Inst. 238. g Str. Rep. 1272. h 5 Co. 51. b. Cro. Jac. 159. Cro. Car. 199. a 5 Co. Lit. 51. b. after costs taxed, and then the pardon comes, and upon the appeal the former sentence is annulled, and costs given to the appellant; these costs are not discharged by the pardon for the costs being taxed in the original suit, the party had a right of appeal, which was not taken away by the pardon; and, consequently, has a right to the costs. So, on a proceeding in rem, in the Exchequer, the crown's share only of a forfeiture is pardoned, by an act of general pardon, but not the informer's on an information previously filed." And in prize proceedings, the condemnation is held to vest the right in the captors so absolutely, that the government cannot release. Thus, in the case of the Elsebe, (one of the famous Swedish convoys) Sir W. Scott determined, that the crown might interpose to release the captured vessels before, but not after, a final adjudication. As to the technical questions which had been raised by the special demurrer upon the pleadings, they were all involved in the question upon the merits. If the remission was void as to the custom-house officers, they had a right to sue in the name of the United States; or, rather, the latter are suing in their own name, to give effect to their own bounty granted to those officers, who are prosecutors from the beginning in the name of the United States. They are not only privies, but parties, and are concluded by a sen a Cro. Car. 47. c 5 Rob. 173. VOL. X. 33 b Parker, 280. 1825. United States V. Morris. 1825. United States V. Morris. tence of acquittal as well as of condemnation." But they may also be considered as the assignees of the United States, and then the question whether they are to sue in their own name, or in that of the United States, will depend upon the forms of proceeding in analogous cases. By the civil law, on the cession of a debt, the assignor impliedly ceded to the assignee all his rights of action as incidental to the cession. The assignee became what was called procurator in rem suam, and sued in the name of his assignor. So, in England, and in this country, it has long since been settled, that the assignee of a chose in action may sue in the name of the assignor, who has no right to interfere with the suit. By the ancient common law, the king could assign a chose in action, though a subject could not. But the assignee of the king took it with all the high prerogative remedies. Thus, it is laid down, that the king's grantee may sue an obligation, &c. granted to him, in his own name, or may prosecute in the king's name; " for the grant of the statute, or debt, is a warrant to him to prosecute process in the king's name." Thus, where a debt due to an outlawed person was granted by the king; held, that the grantee might levy it in his own name, or, by extent, in the king's name, although he hath not any words in his 66 a Hoyt v. Gelston, 3 Wheat. Rep. 319. b 1 Johns. Cas. 411. 2 Johns. Cas. 121. 3 Johns. Rep. 425. Bottomley v. Brooke, 2 Bl. Rep. 1271. 1 Wheat. Rep. 233. 1 Term Rep. 619. 621, 622. c Cro. Jac. 82. |