# United States v. Morris (23 U.S. 246)/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Johnson
The judgment of this Court being placed upon the validity of the plea, and the merits of the defence therein set up, it is unnecessary particularly to notice any other questions that have been discussed at the bar. To guard, however, against an inference, not intended by the Court to be admitted, that the execution, in this case, was properly issued from the District Court of Maine to the Marshal of New-York, it is proper to observe, that this must depend on the construction to be given to the act of Congress of the 3d of March, 1797, entitled, 'an act to provide more effectually for the settlement of accounts between the United States and the receivers of public money.' Independent of this act, it has not, and certainly cannot be pretended, that an execution from the District Court of Maine could run into any other State. The sixth section of that act declares, 'that all writs of execution upon any judgments obtained for the use of the United States, in any of the Courts of the United States, in one State, may run and be executed in any other State, but shall be issued from, and made returnable to, the Court where the judgment was obtained. The pleadings in this case show conclusively, that although the judgment is nominally in favour of the United States, yet it is substantially and beneficially for the use of the custom-house officers of Portland; and that the execution was issued solely and exclusively for their benefit, and not for the use of the United States. If it was necessary to decide this point, it might be difficult to maintain, that this case came within the true intent and meaning of the act; but as the decision of the cause is put upon a point more extensive in its practical application, this is passed by without the expression of any opinion upon it. Nor is it deemed necessary to notice any objections taken to the replication. The argument has been confined principally to the plea, as being the first error on the record.
The plaintiff having replied, without taking any exceptions to the plea, the cannot now avail himself of any defect, that would not have been fatal on a general demurrer.
The objections to the plea may be considered under the following heads:
1. That it does not set forth, with proper averments, the facts and circumstances stated in the petition to the Secretary of the Treasury, and upon which the remission of the forfeiture was granted.
2. That the Secretary of the Treasury had no power to remit after condemnation.
The first objection supposes the case to fall within the rule, that where a justification is set up under a special or limited authority, every thing should be set out to show the case to be within the jurisdiction of the authority whose protection is claimed and relied upon.
It may be observed, preliminarily, that this objection, coming so late, and at this stage of the cause, is not entitled to much indulgence. If well founded, and it had been made at an earlier day, the plea could have been amended, and much expense and litigation prevented. Every reasonable intendment, therefore, in favour of the plea, ought now to be made.
It by no means follows, that in order to sustain this plea, it is necessary to show that it would have been held good on general demurrer. For it is a rule, founded in good sense, and supported by the settled doctrines of pleading, that many defects are waived and cured, by pleading over, that might have been fatal on demurrer.
But it is far from being admitted that this plea would not have stood the test of a general demurrer. The defendant was a ministerial officer, and placed in a situation, in which he was obliged to judge and determine, whether to obey the command of the execution, or that of the warrant of remission from the Secretary of the Treasury. The latter is set out in hoec verba in the plea, and upon its face refers to the law under which it was issued, which was a public act; and in which warrant the Secretary of the Treasury sets forth, that a statement of facts, with the petition of Andrew Ogden, touching the forfeiture, had been transmitted to him by the District Judge of the District of Maine, pursuant to the statute of the United States, entitled, 'an 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 evidence, or its sufficiency, to procure the remission. The Secretary of the Treasury is, by the law, 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 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 custom-house 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 defect. It is laid down by Chitty, (Chitty on Plead. 547.) and for which he cites adjudged 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 certainty, and the plaintiff makes a replication which imports the award to have been made, it aids the uncertainty of the bar. And this rule is not confined to matters of form merely, but extends to matters of substance. Thus, in an action 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.
And the remaining, and more important inquiry is, whether the Secretary of the Treasury had authority to remit the share of the forfeiture claimed by the custom-house officers. And this must depend on the construction to be given to the act under which the power was exercised. The authority of the Secretary to remit, at any time before condemnation of the property seized, 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 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 testator, and intestate, were entitled to the money, and it was decided in favour of the latter. The 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 evidence 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 and 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. and it is admitted that this may be defeated by a remission at any time before condemnation. But, if this is not the limitation pur 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 cease. And the act creating the right of the custom-house officers to a portion of the forfeiture, does not vest any absolute right in them until the money is received. (s. 91.) It declares, that all fines, 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 custom-house officers have no right to question the remission. That the act does not, in terms, so limit the power, is 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 and be discontinued, upon such terms or conditions as he may deem reasonable and just. This enables him to do ample justice to the custom-house 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 custom-house 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 fine, penalty, or forfeiture, to which he may be 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 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 condemnation, 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 in 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 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.

## Notes

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