1825. United States V. Morris. act to provide for mitigating or remitting the forfeitures, penalties, and disabilities, accruing in certain cases therein mentioned," as by the said statement of facts, and petitions remaining in the Treasury Department of the United States may fully appear; and that he having maturely considered said statement of facts, it appeared to his satisfaction, that the said forfeitures were incurred, without wilful negligence or any intention of fraud, and thereupon remitted all the right, claim and demand of the United States, and of all others whomsoever, upon certain conditions therein specified. This warrant, therefore, upon its face, contained every thing required by the law, and which was necessary to bring the case within the cognisance of the Secretary of the Treasury; and to require any thing more from a ministerial officer for his justification, would be imposing upon him great hardship. This plea, by setting out the warrant at large, adopts and asserts all the facts therein set forth, and must be taken as alleging, that a statement of facts had been made by the proper officer, and transmitted to the Secretary of the Treasury, and is, therefore, an averment of that fact. It is not, to be sure, a formal, but is a substantial, averment; which is nothing more than a positive statement of facts, in opposition to argument or inference. It would be altogether useless, and mere surplusage, to set forth such statement of facts in the plea; they would not be traversable. It is not competent for any other tribunal, collaterally, to call in question the competency of the evi V. Morris dence, or its sufficiency, to procure the remission. 1825. The Secretary of the Treasury is, by the law, United States made the exclusive judge of these facts, and there is no appeal from his decision. The law declares, that on receiving such statement, he shall have power to mitigate, or remit, such fine, forfeiture, or penalty, or remove such disability, 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. The facts are submitted to the Secretary, for the sole purpose of enabling him to form an opinion, whether there was wilful negligence, or intentional fraud, in the transaction; and the correctness of his conclusion therefrom no one can question. It is a subject submitted to his sound discretion. It would be a singular issue to present to a jury for trial, whether the facts contained in such statement were sufficient or not to satisfy the Secretary of the Treasury, that there was no wilful negligence, or intentional fraud. If the plea, by setting out the warrant at large, contains, as I have endeavoured to show, an averment, that a statement of facts had been transmitted to the Secretary by the proper officer, as required by the law, it was all that was necessary. This gave the Secretary cognisance of the case, and which was sufficient to give him jurisdiction. But what effect that statement of facts would, or ought to have, upon his opinion, whether the forfeiture was incurred without wilful negligence, or any intention of fraud, is a matter that could not be inquired into. But, should any doubt remain on this point, it United States V. Morris. 1825. is removed by the admissions in the replication; which begins by saying, that although true it is that the said William H. Crawford, as such Secretary of the Treasury of the United States, did make and issue the said warrants of remission, as in the said plea of the said defendant is alleged, yet, &c. proceeding to set out facts and circumstances, to show that the legal effect and operation of such remission cannot take away the moiety of the custom-house officers, but affirming its validity as to the moiety of the United States, and thereby admitting the authority and jurisdiction of the Secretary of the Treasury, and placing the avoidance of the operation of the remission on the rights of the customhouse officers, on a totally distinct ground. The only purpose for which the statement of facts upon which the Secretary acted, could be required to be set out in the plea, would be to show his jurisdiction; and if the replication admits this, it must certainly work a cure, or waiver of the deA defective de- fect. It is laid down by Chitty, (Chitty on be aided by the Plead. 547.) and for which he cites adjudged defective plea cases which support him, that, as a defective declaration may be aided at common law by the plea, so a defective plea may be aided, in some cases, by the replication. As if, in debt on bond, to make an estate to A., the defendant pleads, that he enfeoffed another to the use of A., (which is not sufficient, without showing that A. was a party, or had the deed,) yet, if the plaintiff reply that he did not enfeoff, this aids the bar. So, if the defendant plead an award without sufficient claration may plea, and a by the replication. And this rule is merely, but ex- United States V. Morris. certainty, and the plaintiff makes a replication 1825. which imports the award to have been made, it aids the uncertainty of the bar. not confined to matters of form tends to matters of substance. tion of trespass for taking goods, not stating them to be the property of the plaintiff'; this defect will be aided, if the defendant, by his plea, admits the plaintiff's property. So, where several acts are to be performed by the plaintiff, as a condition precedent, and he does not aver performance of all, if it appear by the plea, that the act omitted to be stated was, in fact, performed, the defect is cured. (6 Binny, 24. Chitty, 402.) We may, then, conclude, that the plea is not, in the present stage of the cause, to be deemed defective on account of the first exception taken to it. tary of the power to remit any time be after condemnation, given to until the mo paid over for distribu And the remaining, and more important inquiry. The Secreis, whether the Secretary of the Treasury had Treasury has authority to remit the share of the forfeiture a forfeiture at claimed by the custom-house officers. And this fore or must depend on the construction to be the act under which the power was exercised. ney is actually The authority of the Secretary to remit, at any the Collector time before condemnation of the property seized, tion. is not denied on the part of the plaintiff; and it cannot be maintained, that Congress has not the power to vest in this officer authority to remit after condemnation; and the only inquiry would seem to be, whether this has been done by the act referred to. (2 L. U. S. 585.) The present case ought not, perhaps, to be considered United States V. Morris. 1825. altogether as a remission after condemnation. For, it appears, by the warrant of remission, that the statement of facts, by the District Judge, upon which the remission is founded, bears date on the 13th of June, 1814, and the condemnation did not take place until May, 1817; and although the remission was not actually granted until January, 1819, yet, as the facts on which it was founded were judicially ascertained three years before the condemnation, there would be some plausibility in maintaining that the remission should relate back to the time when the application was made to the Secretary. But, we think, a broader ground may be taken, and that the authority to remit is limited only by the payment of the money to the Collector for distribution. It may safely be affirmed, that the question now presented, has never received any judicial decision in this Court. Nor has any case been cited at the bar, or recollected by the Court to have been decided here, containing any principle at variance with the construction of the act now adopted. In the case of Jones v. Shore's executors, (1 Wheat. Rep. 462.) no such question was involved. The United States there asserted no claim. Nor had the Secretary of the Treasury exercised any authority under the act in question. The money was in Court for distribution, and the sole question before this Court was, whether the then Collector and Surveyor were the actual incumbents in office, or the representatives of the late Collector and Surveyor, in right of their tes |