CUSTOMS-REVENUE LAWS. If foreign armed ships adopt the character of merchant ships, they must be subject to the consequences thereof, and be treated as merchant ships by our revenue officers. OFFICE OF THE ATTORNEY GENERAL, March 12, 1820. SIR: I have examined the case stated by the collector at Norfolk, together with the opinion of Mr. Bradford, then Attorney General, on an analogous case in 1794. It is very probable (perhaps certain) that Congress, in framing our revenue laws, did not contemplate the case of a public armed ship of a foreign nation entering our ports with merchandise on board, and with the intention to land such merchandise for sale and consumption within our jurisdiction; because that is an employment to which it was not to have been expected, a priori, that public armed ships would be put. It is, however, equally clear that Congress intended to impose a duty on all foreign merchandise imported into our country, howsoever imported. And if a foreign armed ship, departing voluntarily from her appropriate character, chooses to adopt that of a merchant ship, she must, I think, be subject to all the consequences of such adoption, and be treated by our revenue officers as a merchant ship; there being no principle of national comity known to me which requires a nation to permit a foreign armed ship to trade in her ports, in evasion of her revenue laws. I have the honor, &c., &c., To the SECRETARY OF THE TREASURY. WM. WIRT. FORFEITURE FOR SMUGGLING. The innocent purchaser of a brig under forfeiture for smuggling, takes her subject to the confiscation, as much as the purchaser of a stolen horse takes it subject to the claim of the true owner. OFFICE OF THE ATTORNEY GENERAL, SIR: I have examined carefully the petition of Isaac Entwisle, with the documents annexed to it, which you have submitted for my opinion. It is alleged, and appears to be true, that Mr. Entwisle purchased the brig Cumberland in entire ignorance of the fact that a forfeiture had attached to her by a previous act of smuggling. Such forfeiture, however, had attached, and followed her into the hands of Mr. Entwisle; nor do I think that the private purchase, under these circumstances, purged the offence, and removed the forfeiture, any more than the private sale of a stolen horse would divest the title of the original and true proprietor. Such is my opinion on the strict law of the case. It is, however, a very hard case on Mr. Entwisle; and, with great deference, I think a fit one for the act of grace which the petition solicits. I have the honor to be, sir, most respectfully, your obedient servant, WM. WIRT. To the PRESIDENT OF THE UNITED STATES. LIABILITY OF SURETIES FOR COLLECTORS OF TAXES. Sureties of collectors of taxes appointed under the act of the 22d July, 1813, are liable for their delinquencies under the act of 1815 to the amount of the penalties of their bonds. OFFICE OF THE ATTORNEY General, March 27, 1820. SIR: The question whether the sureties of Samuel M. Reed, who was appointed a collector of direct taxes and internal duties under the act of 22d July, 1813, are liable for his delinquencies, under the act of January 9, 1815, is one of those legal questions in relation to which one would not be surprised at a judicial decision the one way or the other. As well from its delicacy and difficulty, as from the circumstance that the decision of your department is final on the parties, I have held the case longer under consideration than I could otherwise have wished, and now proceed to give you the result of this consideration. It is a settled principle, both of law and in equity, that a surety can be no further bound than he has expressly bound himself by his own stipulation. Giving the sureties in the present instance the full advantage of this principle, let us see how far their stipulation extends; because thus far, and no farther, can we bind them. The act of the 22d July, 1813, under which Mr. Reed was appointed, did not, itself, impose a direct tax. It was a measure preparatory merely to a system of direct taxation, to which the emergencies of the country had forced Congress to look. It was a measure of permanent preparation, not for the execution of a single direct tax, but for a course of them, through a succession of years, which was at that time manifestly in the contemplation of Congress. With this view, this act arranged the States into collection districts, provided for the appointment of assessors and collectors, and prescribed their duties in detail; which duties they were expressly required to execute whenever Congress should impose a direct tax. Such is expressly the language of the 4th and 5th sections; and the law is unlimited in point of duration. It is prospective, then, without limitation. It is a permanent arrangement for the assessment and collection of all future direct taxes, &c., that should thereafter be imposed by the authority of the United States; and the appointments to office made under its authority are also to be permanent. If no act imposing a direct tax had been passed at that session, the appointments must, nevertheless, have been made under the act of the 22d July; and the officers so appointed would have stood ready, according to the express language of the law, to have entered on the discharge of their duties whenever Congress should impose a direct tax, and as often as they should impose such taxes. The appointments being permanent, it is reasonable to anticipate that the bond of office required from the collector would be co-extensive with the tenure by which he held his office; that is to say, would bind him and his sureties so long as he should hold the office of collector. It is the 18th section of the act of the 22d July, 1813, which requires and prescribes the bond: "which bond shall be payable to the United States, with condition for the true and faithful discharge of the duties of his office according to law, and particularly for the due collection and payment of all moneys assessed upon such district." There is certainly nothing in this language which limits the obligation of this bond to the first direct tax that should be thereafter imposed; it is certainly general enough to look throughout the whole time during which the collector should hold the office, and to bind him and his sureties throughout. Unless there be something, therefore, to limit the generality of this stipulation, the obligor and his sureties must be bound to answer any delinquency which might thereafter occur, to the full amount of the penalty of the bond. The cir cumstances to be relied on as affecting this limitation are, I apprehend, these: 1. The collector is required to give this bond whenever the assessor is about to hand in to him a list of assessed property for collection, and before receiving such list. 2. The bond is required to be in at least double the amount of the taxes assessed in such list. Hence, as Congress intended such bond to be given as often as any list was about to be handed to the collector, and has given the amount of such list as the standard of the penalty of the bond, it may be argued, with great plausibility, that Congress intended each bond to stand as a security for the faithful collection of each list, separately and respectively; for the penalty, it will be said, of any bond, is too inadequate to found the belief that Congress intended to rely on any bond as the permanent bond of office. And this argument, it may be said, is fortified by the act of 9th January, 1815, (under which the delinquency in question is understood to have arisen,) whereby the collector, before receiving any list under that law, is also required to give bond, &c. To the last argument, however, it may be answered, that the same section of the act of 1815 which requires this new bond from the collector, expressly provides that nothing therein contained should be deemed to annul or otherwise to impair the obligation of the bond theretofore given by any collector: and to the whole argument, that the criterion given for the penalty of each successive bond was the only one which, from the nature of the case, could be safely assumed by Congress; that, if it had been their intention to limit the obligation of each bond to the particular list handed in, it would have been very easy to have given the bond this discriminating and special character; that the general language which they have prescribed for the condition of the bond is directly at war with the restricted purpose imputed to it; and that, from this generality of language, we are authorized to infer that Congress intended these successive bonds ex abundanti cautela, as so many reinforcements to the general purpose of securing a faithful discharge of the collector's duties-each bond binding from its date through out. On the whole, I deem it the better opinion, that the sureties are bound for the delinquency, under the act of 1815, to the amount of the penalty of their bond. I am, sir, &c., To the SECRETARY OF THE TREASURY. WM. WIRT. PARDONS. The power of absolute pardon given to the President by the constitution includes the power of issuing a conditional one. Yet there is great danger that conditional pardons may result as absolute ones, from the difficulty of enforcing conditions after the offender shall have been released from the custody of the law. The condition, in order to be effectual for any purpose, must be such that a resort need not be had to the power of arrest on the original case. Pardons may be issued before conviction. They presuppose an offence, and nothing more; and there is neither any constitutional nor legal provision which requires them to be preceded by a trial, a verdict, or a sentence. They may be founded on a confession in writing. OFFICE OF THE ATTORNEY GENERAL, March 30, 1820. SIR: I have been indisposed since I received your communication of the evening before last, and am still unable to leave the house safely; which I hope will be my apology for having delayed my answer, and for making it now more imperfect than I could wish it. The power of pardon, as given by the constitution, is the power of absolute and entire pardon. On the principle, however, that the greater power includes the less, I am of opinion that the power of pardoning absolutely includes the power of pardoning conditionally. There is, however, great danger lest a conditional pardon should operate as an absolute one, from the difficulty of enforcing the condition, or, in case of a breach of it, resorting to the original sentence of condemnation; which difficulty arises from the limited powers of the national government. For example: you could not pardon on a condition to be enforced by the officers of a State government-as, for instance, working at the wheelbarrow in the streets of Baltimore, under the superintendence of the town officers-because you have no political connexion with these officers, and, consequently, no control over them. But suppose a pardon granted on a condition to be executed by officers of the federal government-as, for example, to work on a public fortification-and suppose this condition violated, by running away; where is the power of arrest, in these circumstances, given by any law of the United States? And suppose the arrest could be made; where is the clause in any of our judiciary acts that authorizes a court to proceed in such a state of things? And, without some positive legislative regulation on the subject, I know that some of our federal judges would not feel themselves at liberty to proceed de novo on the original case. It is true, the King of England grants such conditional pardons by the common law; but the same common law has provided the mode of proceeding for a breach of the condition on the part of the culprit. We have no common law here, however; and hence arises the difficulty. I understand from Judge Duvall that convicts have been pardoned by the President of the United States on condition of joining the navy of the United States: evidence of which, if it be so, may, I presume, be found in the Department of State. This is a safe and practicable condition; for although in case of desertion the original sentence of condemnation could not be resorted to, yet the new offence of desertion leads to the same catastrophe. If a condition can be devised whose execution would be certain, I have no doubt that the President may pardon on such condition. All conditions precedent would be of this character; e. g., pardon to a military officer under sentence of death, on the previous condition of resigning his commission. On the second question, whether pardon can precede condemnation, I am of the opinion that the President may, if he chooses, grant such pardon. There is nothing in the terms in which the power of pardon is granted which requires that it shall be preceded by a sentence of convic tion on the verdict of a jury. There is nothing in the force of the term pardon which implies a previous condemnation. A pardon presupposes an offence, and nothing more. If the party confesses his guilt, every degree of certainty as to the fact of the perpetration of the offence is gained that a trial could gain; because, if he were arraigned and pleaded guilty, no jury would be empannelled, and no evidence would be heard in the case, but judgment would be entered on his own plea. But where a pardon is granted on the voluntary confession of one who has not been indicted, the confession should be in writing, and the pardon founded on the specific offence confessed; in other words, it should be a special pardon, so as not to protect the party against a prosecution for any more aggravated offence than he has thought proper to confess. And it is proper to suggest, further, that it would be much safer, as a general rule, to require a previous trial and condemnation; because all previous pardons must be granted on ex parte representations, by which the President may be deceived; whereas, on a full trial on the plea of not guilty, the court and jury will never fail to recommend to mercy, if there be any ground for such recommendation; and the President will thus be placed on a sure footing. The latter course, too, so far as I am informed, is more consonant with the general practice both of the State and federal governments, and is least exposed to discontent and censure, of which there is always danger from the adoption of a new, although a legal course. I have the honor to be, sir, most respectfully, your obedient servant, WM. WIRT. To the PRESIDENT OF THE UNITED STATES. FEES OF IMPRISONED WITNESSES. Witnesses imprisoned on account of their inability to give security for their appearance at court are not entitled to any compensation beyond the one dollar and twenty-five cents per day for attending court and five cents per mile for travelling expenses; allowed in act of February 28, 1799. Office of the Attorney General, March 31, 1820. SIR: You ask my opinion on the following questions: 1. Is a person detained in prison as a witness in a criminal case, from his inability to give security for his appearance in the recognizance required by law, entitled to the compensation of a witness for the time he is so detained? 2. If he is so entitled, must not the expense of his subsistence be deducted from the compensation to which he would be entitled? In answer to which, I have to state, that the only act of Congress now in force, which makes any provision on the subject of compensation to witnesses, is, I believe, the act of the 28th February, 1799, which gives to each witness one dollar and twenty five cents for each day he shall attend in court, and five cents per mile for travelling expenses. I answer the first question, therefore, in the negative; and this is an answer to the second also. If there be any hardship in the case, Congress can remove it. I have the honor to be, sir, most respectfully, your obedient servant, WM. WIRT. To the SECRETARY OF THE TREASURY. |