United States V. 1825. obviously attaches to the execution, and not to the judgment. It was for the benefit of the government, and was not intended to be communicable to citizens in cases where the United States have no interest. All the rules for construing statutes will bear out this interpretation." Morris. Mr. Webster, for the plaintiffs, in reply, insisted, that the authority to sue in the name of the United States could not be disputed by the defendant in this Court. The government was here represented by the Attorney General, and if he did not interfere with the suit, it might well be maintained. It was novel doctrine, that an appearance by a wrong attorney was a ground of demurrer. If it had been intended to take advantage of that objection, a summary application should have been made to the Court below, by whom the attorney on the record had been appointed to prosecute this suit, the District Attorney having refused to prosecute it. The discretionary power exercised by the Court below in this instance, was essential to the administration of justice, whenever the District Attorney refuses to act, or is interested, or in case of his death. But, even if this Court should be of opinion, that the order made in the present case was irregular, it would not, on that account, give judgment against the sufficiency of the plaintiff's re ́plication as pleaded. It would merely direct the pleadings to be amended by inserting the name a Bac. Abr. tit. Statute, (J.) 5. Plowd. 18. of the District Attorney in the place of the present attorney on the record. The plaintiff's declaration is admitted to be good, and it is unnecessary to consider the replication, since the plea contains the first fault (if any) in the pleadings. It cannot be pretended that it is a good plea, because the plaintiff has declared by a wrong attorney. If this judgment be affirmed, it is a perpetual bar as against the United States, and all others interested. While the cause is allowed to stand on the calendar, the rights of the parties, as stated in the pleadings, must alone be regarded. But the officers of the customs have a right to use the name of the United States. The cases cited in the opening sufficiently show it. Wherever the subject has an interest in a prosecution in which the king's name is necessary as a formal party, the subject has a legal right to use it. All cases of information, not ex officio, are of this sort, such as those by the Master of the Crown Office, in quo warranto, of intrusion to office, &c. The prerogative of the supreme magistrate is held, not for purposes of ostentation, but for the substantial benefit of society, and its aid may be invoked as often as necessity requires it. The plea is bad, because the Marshal, who is a mere ministerial officer, was not a competent judge of the validity or effect of the remission. He is the officer of the Court, and not of the treasury. He is to collect the money, and bring it into Court. When it is received in the registry, distribution is to be made of it according to 1825. United States V. Morris. United States V. Morris. 1825. law; or if the forfeiture has been remitted, the conditions of the remission are to be complied with under the directions of the Court. If the Marshal had levied the money upon the execution, and no remission had been obtained, he could only be compelled to pay it over by a motion to compel him to return the process. If the remission had been unconditional, and could devest the share of the custom-house officers, he had nothing to do with carrying it into effect. It is by the Court only that the rights of the parties are to be ascertained, and their respective claims to be satisfied. The plea is also bad, because it does not set forth, with proper averments, the facts and circumstances stated in the petition to the Secretary of the Treasury, upon which the remission of the forfeiture was granted. It is an inflexible rule of pleading, that whenever a justification is set up under a special or limited authority, every thing should be set forth to show the case to be within the protection of the authority relied on. The statement of facts on which the remission was grounded, is essential to be known, in order to see whether the Secretary of the Treasury, who also acts merely as a ministerial officer, has pursued his authority. It has, indeed, been argued, that the Secretary acts judicially in those cases, and that his decision is an adjudication binding on all the world, and especially on the officers of the customs, who are both parties and privies. But, how can that be a judicial power, which is merely of executive discretion? The Secretary may remit under the statute, whenever it is proved to his satisfaction that the offence was committed "without wilful negligence, or an intention of fraud;" but he is not bound to remit even in case of innocence ever so clearly proved. All judicial power, under the constitution, is vested in one Supreme Court, and such inferior tribunals as Congress shall establish. How, then, can any portion of that power be vested in the treasury department, or in any other executive department? The plea is bad, because it alleges the remission after a final sentence of condemnation, and a summary judgment upon the appraisement bond. The Remission Act of Congress was evidently copied from the British statute of the 27th Geo. III. c. 27.; and under that statute the Commissioners of the Customs have never exercised the power of remitting a forfeiture after judgment." This defect of authority having been found, in some respects, inconvenient, the power of remitting after judgment was expressly given (not to the Commissioners of the Customs, but to a higher authority,) the Lords of the Treasury, by the 54th of Geo. III. c. 171. When it is said, that the rights of the custom-house officers are vested from the time of the judgment or sentence, it is not meant that they are vested independent of the act of Congress, but under the act, and according to the act. If the law authorizes a remission after judgment, it is idle to speak of a Chitty's Crim. Law, 798. 1825. United States V. Morris. United States V. Morris. 1825. rights being vested by the judgment. The question is, what does the act mean? And it is contended, that it limits the power to cases before condemnation. Every clause and phrase of the act is applicable, and alone applicable, to such cases. The persons entitled to the benefit of the act, are those who "shall have incurred any fine, 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," &c. This cannot refer to things already forfeited. Goods forfeited and condemned, are not subject to forfeiture; they are actually forfeited. So, the words, "incurred any forfeiture." No man incurs a forfeiture by a judgment against him. It is the offence by which the forfeiture is incurred. So, also, the summary inquiry which is to be made by the District Judge, into the facts and circumstances of the case, shows, that the law supposes that no trial had yet been had. It would be an absurd provision, upon any other supposition. The act authorizes the Secretary to direct the prosecution, if any shall have been instituted, for the recovery of the forfeiture, to cease, and be discontinued. It supposes a prosecution either pending, or not yet brought. The prosecution cannot be said to be pending, in a general sense, after judgment. There is not a single expression in the act applicable to a judgment. But here are two successive judgments, one against the goods, and the other against the claimants, upon the appraisement bond. How can the remission dis |