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The

United States

V.

Morris,

tator, and intestate, were entitled to the money, 1825. and it was decided in favour of the latter. same principle governed the case of Van Ness v. Buel, (4 Wheat. Rep. 75.) But these cases decide no more, than that the right of the custom-house officers to forfeitures, in rem, attaches on seizure, and to personal penalties on suits brought; and in each case this right is ascertained and consummated by the judgment, as between such officers and the party who has incurred the forfeiture or penalty. But they decide nothing with respect to the right, or the control of the United States, over such penalties and forfeitures. The rights and interests of these officers must necessarily be held subordinate to the authority of the United States over the subject. And that such is the light in which they are viewed, is evident from what fell from the Court in the case of Gelston v. Hoyt, (3 Wheat. Rep. 319.) It is there said, the seizing officer is the agent of the government from the moment of the seizure up to the termination of the suit. His own will is bound up in the acts of the government in reference to the suit. By the very act of seizure, he agrees to become a party to the suit under the government; for, in no other manner, can he show an authority to make the seizure, or to enforce the forfeiture. If the government refuse to adopt his acts, or waive the forfeiture, there is an end to his claim; he cannot proceed to enforce that which the government repudiates.

It is not denied but that the custom-house officers have an inchoate interest upon the seizure,

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United States

V.

Morris.

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1825. and it is admitted that this may be defeated by a remission at any time before condemnation. But, if this is not the limitation put upon the authority to remit, by the act giving the power, it is difficult to discover any solid ground upon which such limitation can be assumed. If the interest of the custom-house officers, before condemnation, is conditional, and subject to the power of remission, the judgment of condemnation can have no other effect than to fix and determine that interest as against the claimant. Those officers, although they may be considered parties in interest, are not parties on the record; and it cannot with propriety be said they have a vested right, in the sense in which the law considers such rights. Their interest still continues conditional, and the condemnation only ascertains and determines the fact on which the right is consummated, should no remission take place. This is evidently the scope and policy of the laws on this subject. The forfeiture is to the United States, and must be sued for in the name of the United States. (3 L. U. S. 221. s. 89.) It is made the duty of the Collector to prosecute, and he is authorized to receive the money, and on receipt thereof, is required to distribute the same according to law.. In all this, however, he acts as the agent of the government, and subject to the authority of the Secretary of the Treasury, who may direct the prosecution to ceasc. the act creating the right of the custom-house officers to a portion of the forfeiture, does not

And

V.

Morris.

vest any absolute right in them until the money 1825. is received. (s. 91.) It declares, that all fines, United States penalties, and forfeitures, recovered by virtue of this act, shall, after deducting all proper costs and charges, be paid, one moiety into the treasury, and the other moiety divided between the Collector, Naval Officer, and Surveyor. No part of the act warrants the conclusion, that the right of these officers becomes absolute by the condemnation. But, on the contrary, the plain and obvious interpretation is, that the right does not become fixed until the receipt of the money by the Collector. Unless, therefore, the act under which the remission is allowed (2 L. U. S. 585.) limits the authority of the Secretary of the Treasury to the time of condemnation, the customhouse officers have no right to question the remission. That the act does not, in terms, so limit the power, is very very certain; nor is such a construction warranted by the general object and policy of the law, which is intended to provide equitable relief where the forfeiture has been incurred without wilful negligence or intentional fraud. It presupposes, that the offence has been committed, and the forfeiture attached according to the letter of the law, and affords relief for inadvertencies, and unintentional error. And why should such relief be foreclosed by the condemnation? The law was made for the benefit of those who had innocently incurred the penalty, and not for the benefit of the custom-house officers. If any prosecution has been instituted, the Secretary has authority to direct it to cease

United States

V.

Morris.

1825. and be discontinued, upon such terms or conditions as he may deem reasonable and just. This enables him to do ample justice to the customhouse officers, not only by reimbursing all costs and expenses incurred, but rewarding them for their vigilance, and encouraging them in the active and diligent discharge of their duty in the execution of the revenue laws. But, to consider their right to a moiety of the forfeiture as absolute, and beyond the reach of the law, after condemnation, would be subjecting the innocent to great and inequitable losses, contrary to the manifest spirit and intention of the law. The Secretary is authorized to direct the prosecution to cease and be discontinued. This, undoubtedly, gives him a control over the execution. The suit, or prosecution, does not end with the judgment, but embraces the execution, and it has so been considered by this Court at the present term. And that such is the sense in which the term prosecution is used in these laws, is evident from the 89th section of the Collection Act, where the Collector is required to cause suits to be commenced and prosecuted to effect. But the prosecution would be to very little effect, unless it extended to and included the execution. The provision in the third section of the act under which the remission is allowed, affords a very strong inference, that the rights of the customhouse officers are conditional, and subordinate to the authority to remit. It declares, that nothing herein contained shall be construed to affect the right or claim of any person, to that part of any

United States

V.

Morris.

fine, penalty, or forfeiture, to which he may be 1825. entitled, when a prosecution has been commenced, or information has been given, before the passing of this act, or any other act relative to the mitigation or remission of such fines, penalties, or forfeitures; thereby clearly showing, that before such power to remit was given, the right of the custom-house officers attached upon the commencement of the prosecution, and could not be devested; but that such right was now modified, and made conditional. This provision is contained in the first law which passed in the year 1790, (2 L. U. S. 103.) giving authority to the Secretary of the Treasury to remit penalties and forfeitures. This act was temporary, but continued from time to time until the 8th of May, 1795, when it expired, and was not revived until March, 1797, leaving a period of two years, when the power to remit was not vested in the Secretary of the Treasury, and to which period the provision in the third section of the act of 1797 probably refers.

The powers of the Secretary of the Treasury have been supposed analogous to those of the Commissioners of the Customs in England, under the statute 27 Geo. III. c. 32. s. 15. But it is very obvious, on reference to that statute, that the authority of the Commissioners to remit, was limited to the condemnation. These powers were afterwards, by statute 51 Geo. III. c. 96. extended, but still limited to remissions before condemnation. It was probably not deemed advisable to confer more enlarged powers

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