United States v. Morris (23 U.S. 246)/Concurrence Johnson

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 He who supposes his case not to come within the construction of a law, or that the law is repealed, expired, or unconstitutional, cannot be visited with moral offence, either in the act charged or the defence of it.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 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. Fines, penalties, and disabilities, are not incurred, and do not accrue, in the technical sense of the terms, until judgment. With regard to disabilities particularly, (and there is no discrimination made between the cases,) I would notice that disqualification to hold any office under the United States, which is imposed upon a smuggler for seven years. Who can question that it must be counted from the day of judgment, and not from the day of the offence or information? Or who can suppose that it could be made a plea to the authority of a public officer at any time before conviction?

But, with regard to fines and forfeitures, also, there are various provisions of the United States laws, which look positively to a trial as necessary to determining whether such fines and forfeitures have been incurred. I would notice particularly the 29th section of the Collection Law of 1799, under which, incurring the penalty for the offence there stated, is made to depend upon the master's not being able to satisfy the Court, by his own oath, or other sufficient testimony, of certain facts, which, in the given case, prevent his incurring the fine.

So, also, of the 67th section of the same law, in which a forfeiture is made to accrue upon a state of facts which positively requires the intervention of a Court of justice, and which, of consequence, cannot be said to have been incurred or accrued until judgment.

But other considerations present themselves upon this law, which lead to the same conclusion. The words are, 'shall prefer his petition to the Judge of the District in which such fine, penalty, forfeiture, or disability, shall have accrued.' That this word accrued meant something more than the term incurred, used in the previous part of the section, is obvious from this consideration, that an offence might be committed in one District, and the offender prosecuted in another; but it never was imagined, that the suit for remission could be going on in the District where the penalty was incurred, in one sense of the term, and the prosecution in another. The term accrued, therefore, has been universally held to be here used with relation to the seizure, information, or suit for the penalty; and so far from its being held to have any effect in confining the time of prosecuting this claim for remission to the interval between information and judgment, that, practically, we know, in some of the most commercial Districts, the construction adopted was, that the penalty did not accrue until conviction; and, hence, suffering a decree or judgment to pass, was considered as essential to making up the case in which the suit for remission might be preferred. And there was some reason for this practice, since the necessary meaning of the term, as distinguished from the word incurred, shows, that there could hardly ever occur a case in which the suit for remission was not preceded by the suit for the penalty. But, if the defendant was compelled to confess that he had violated the law, and so the act requires, what reason could exist why judgment should not forthwith pass against him? And if, under such circumstances, the judgment was a bar to the remission, the boon held out to them was all a fallacy; nay, more, it was a lure to ensnare him; for the law imposes no obligation on the Judge to stay proceedings; and whether he would or not, rested with him, or with the District Attorney, until the Secretary should have time to act upon the application for remission.

The replication, however, exhibits the true ground on which the real plaintiff in this suit is compelled to rest his case: Which is, that by virtue of the judgment, certain rights were vested in him, over which the remitting power of the Secretary does not extend. In making up this replication, the party ought to have felt the real difficulties of his case. It is generally true, that the rules of pleading furnish the best test of a right of action. The effect, in this case, was to introduce a new personage into the cause; and if I were disposed to get rid of the question, on a technical ground, I should find no difficulty in coming to the conclusion, that there is a departure in this plea, and he has abated his writ. How, in fact, the name of the United States comes at all to be used in this cause, is to me a mystery. The very policy of the law in this part of its revenue system is avoided by it, and would be frustrated, if the practice could be countenanced. That the name of the United States should be used against its will, and an attorney for the United States nominated by a Judge, to act where the attorney of the United States refuses to act, and that without any authority by statute, I acknowledge has excited my surprise.

The principles asserted are, that an absolute interest is vested by law in the Collector; that the United States are the trustees to their use; that the act of the trustee shall not defeat the interests of the cestui que use, and that he shall have the use of the trustee's name to vindicate his rights, that too in an action for damages.

The whole of this thing appears to me to be wrong. If the right was an absolute, substantive, individual right, why was not the suit brought in the name of the Collector? If his interest is only an equitable interest, by what known rules of pleading can he avail himself of his mere equitable interest in a suit at law? or rather, can he make his appearance as party in the suit instituted by his trustee? and that too, a suit for damages? It all results in a strong attempt to modify the operation of our laws, and to regulate the rights and powers of our officers, by some fancied analogy with the British laws of trade, and British revenue officers.

Our system is a peculiar system; and nothing is clearer to my mind, than that, in many particulars, it is constructed with a view to avoid that very analogy which is here set up, and those consequences and embarrassments which might grow out of it. In the instance before us, relief was to be provided for a case of misfortune and of innocence, and nothing could have been more absurd, than to suffer the vested rights of informers and seizing officers to embarras the government in its benevolent and just views towards the objects of this law. Mercy and justice could only have been administered by halves, if Collectors could have hurried causes to judgment, and then clung to the one half of the forfeiture, in contempt of the cries of distress, or the mandates of the Secretary. Hence, according to our system, all the suits to be instituted under the laws over which the Secretary's power extends, are commenced in the name of the United States. No other party is permitted to sue; they are all made national prosecutions; all the legal actors are those who are bound in obedience to the government that prosecutes. Nothing is more untenable than the idea, that at any one stage of the prosecution, the government assumes the character of a trustee; an idea so abhorrent to the principles of the common law, that to make the king a trustee, was to make him absolute proprietor. Nor is it until the character of prosecutor for offences against itself is put off, that the law raises a state of things, in which the relation of trustee and cestui que use actually can arise. This is when the money is paid into the hands of the Collector. To him the law directs that it shall be paid, in order that it may be distributed. What right, I would ask, would any one of the distributees here have to move the Court, that the money be paid to him, and not to the Collector? There are cases in which other persons than a Collector may be entitled in the capacity of informers, and it may then be necessary for the Court to decide on individual rights. But in no case, that I am aware of, arising under the collection law, can the Court be called upon to pay the money in any other way than to the Collector, to be by him distributed; and this distribution I consider as a mere boon from the government, which they may justly, and do practically, reserve a sovereign control over, until so paid under their laws. The gift is from them, of a thing perfected to them, and they may modify and withdraw that gift, ad libitum. When once paid away, according to legislative will, their control is at an end, and the right then, and not till then, becomes vested and absolute, as between them and their officers, whom, to the last, the law regards as absolute donees. That such is the view of the Legislature, and that in the exercise of that discretion, they still meant to be reasonable and just, and not to exercise an ex post facto power in such case, is all conclusively proved in the third section of this act, as has been very justly insisted on in argument. During two years, this power of the Secretary had remained suspended, and with regard to rights accruing during that time, the Legislature declares, that as the modification imposed upon the grant to the informer, or siezing officer, by virtue of that dispensing power, did not then exist, their proportions should not afterwards be subjected to it, but the Court may assess their proportions in a summary manner. There cannot be a more explicit declaration of legislative understanding than this clause presents, inasmuch as it makes no discrimination between the cases of judgment and other cases, but considers the right accruing to them the same before judgment as it is after.

There is one peculiarity in this case, which, in my opinion, precludes the possibility of recovery, independently of the general principle; which is, that this action is brought against the Marshal for not executing process issuing from another State. It certainly presents a dilemma from which I think it impossible for the party plaintiff to escape. The right to issue such process originates in the 6th section of the 'act more effectually to provide for the settlement of accounts between the United States and receivers of public money,' by the words of which the power is explicitly confined to the case of executions on judgments obtained for the use of the United States.

The real plaintiff here, then, is reduced to this alternative: Either the judgment was for his use or it was not. If not for his use, then he cannot be damnified by the defendant in refusing to execute it. But if for his use, it cannot be for the use of the United States, and then the execution issued wrongfully, and was rightfully disobeyed. If it be replied, that the judgment, in the first place, was obtained for the use of the United States, it only brings us back to what I before observed, that so entirely is this true, as to raise no vested right in any one on the solitary ground of an eventual contingent interest.

Judgment affirmed.