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upon the Commissioners of Customs, but that a power somewhere to remit after judgment of condemnation was proper and necessary; and, accordingly, by statute 54 Geo. III. c. 171. this power is transferred to the Commissioners of the Treasury. The two former acts are recited, and the recital then proceeds thus: "Whereas it is expedient, that the provisions of the said acts should be further extended, and that the Commissioners of his Majesty's Treasury should be empowered to restore, remit, or mitigate any forfeiture, or penalty, incurred under any laws relating to the revenue, or customs, or excise, or navigation, or trade, either before or after the same shall have been adjudged in any Court of law, or by or before any Commissioner of Excise, or Justice of the Peace;" and it is then enacted, that the Commissioners of the Treasury may order any goods seized as forfeited, to be restored, on the terms and conditions mentioned in the order, and may mitigate or remit any penalty or forfeiture which shall have been incurred under the revenue laws, and upon such terms and conditions, as to costs, or otherwise, as under the circumstances of the case shall appear reasonable. The enacting clause in this statute is general, like our act. It does not, in terms, give the power to the Commissioners of the Treasury to remit after condemnation, and yet there can be no doubt the power extends to such cases; and, if this be so, what becomes of the rights of informers, which have been supposed to become, by the judgment of con

demnation, so vested, as not to be devested even by a pardon.

The powers given by this statute to the Commissioners of the Treasury, are very analogous to those given by our act to the Secretary of the Treasury, and the phraseology employed to confer such powers is nearly the same in both. Neither the one nor the other, in terms, extends the power to remission after condemnation; and there can be no reason why the same construction should not be given to both. No vested rights of informers, or custom-house officers, are violated in either case. These rights are conditional, and subordinate to the power of remission, and to be provided for in the terms and conditions upon which the remission is granted.

The practical construction given at the Treasury department to our act, has not been particularly inquired into. It is understood, however, that until within a few years, remissions were granted as well after as before condemnation, but that latterly this power is not exercised after condemnation, nor will the remission be granted before condemnation, unless the petitioner will admit the forfeiture has been incurred. This practice is probably founded on the impression, that the equitable powers of the Secretary ought not to be interposed, until the legal guilt of the petitioner is ascertained. But the rights of the custom-house officers would seem to be as much affected under such a practice, as to remit after condemnation. Those rights are said to be inchoate by the seizure, and to be consummated

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1825. by the condemnation. The confession of the forfeiture before condemnation, remaining on the record of the Treasury department, although not a judicial condemnation, might well be said to consummate the rights of the custom-house officers, if they are to be considered as becoming absolute when the forfeiture is ascertained. The condemnation does no more than to determine that question, so far as respects the rights of those officers; for the condemnation is not to them, but to the United States; they are no parties to the judgment; and their rights must depend upon, and be governed and controlled by, the acts of Congress, which create and regulate such rights; and by these acts, those rights, in the opinion of the Court, do not become fixed and absolute by the condemnation, but are subject to the power of remission by the Secretary of the Treasury, until the money arising from the forfeiture is received by the Collector for distribution. The warrant of remission, therefore, in this case, when served upon the Marshal, operated as a supersedeas to the execution, and justified a discharge and restoration of the property levied upon, and exonerates him from all claim to damages by the custom-house officers.

Mr. Justice JOHNSON. I entirely concur with my brethren in the opinion, that the power of the Secretary to remit extends as well to cases after as before judgment rendered. The question is one which I have had to consider repeatedly in my circuit, and which I so decided more than

twelve years ago. The reasons on which I then founded, and still adhere to this opinion, were briefly these:

I consider the contrary doctrine as neither consistent with the words nor the spirit of the act of 1797. The unavoidable consequence of it would be, that the suitor for grace is shut out of every legal defence; and it would be difficult to assign a reason why justice should be refused by the hand that tenders mercy. Many defences are not only consistent with the claim for remission, but furnish in themselves the best ground for extending the benefit of the act to the party defendant. He who supposes his case not to come within the construction of a law, or that the law is repealed, expired, or unconstitutional, cannot be visited with moral offence, either in the act charged or the defence of it. Yet, how is the question of right ever to be decided, unless he is permitted to try the question before a Court of law? In such a case, pertinacious adherence to his offence cannot be imputed to him, since resisting the suit on the one hand, while he sues for remission on the other, amount to no more than this, that he denies having violated the law; but if the Court thinks otherwise, he then petitions for grace, on the ground of unaffected mistake; a point on which, of course, he must satisfy the Secretary, before he can obtain a remission.

If the question be tested by the letter of the law, it will be found, I think, to lead to the same conclusion. The words are, "whenever any VOL. X.

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person, who shall have incurred any fine, penalty, 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, by force of any present or future law of the United States, for laying or collecting any duties or taxes, or by force of any present or future act concerning the registering and recording of ships or vessels, &c. shall prefer his petition to the Judge of the District in which such fine, penalty, forfeiture, or disability, shall have accrued, truly and particularly setting forth," &c. then, &c. the power of remission may be exercised by the Secretary, and the prosecution if any, ordered to be staid.

On perusing this act, it must be conceded, that the terms are sufficiently general to extend the powers of the Secretary, without limit, to the cases of fine, forfeiture, or disability, occurring under the several laws specified. The limitation, therefore, must be sought for either in some principle of construction, or in some principle aliunde, which is competent to impose such limitation.

But, with a view to construction, there will be found several considerations calculated to extend the power granted to cases wherein judgments have been obtained, rather than to restrain it to any pre-existing state of things. If the question be tested by the technical signification of the terms, in strictness the power would be confined to cases in which judgment had been obtained, rather than to those of a contrary description.