The enquirer. [volume] (Richmond, Va.) 1804-1815, 1811-12-21

lector," be that the bond should be made paw
able to the collector, yet it is not their ne
cessary nearing; and if upon consideration
OF the whole subject, it be reasonable to sup
pose that the legislature used them in diff
terent sense. they ought to be construed ac-
cording to that sense. The doctrine that pc
nal laws are to be construed strictly, does
not oppose Il liberal construction of this part
OF the act; for take it the one way or the
other, and it does not render the law more
or less penal. The words ought to bc con-
stiued as they would DC construed before the
execution of bond.
The act itself furnishes motives for the o.
pmion, that the legislature intended the bond
to be taken by the collector, but to bc made
payable to the United States
There is no clause in the act appropria-
ting this penalty to the United States con-
sequently, If made payable to the collector,
1t would be for his sole benefit. 1t being "a
penalty inflicted for d breach of the laws of
the United States, there can bc no reason for
supposing that it would be bestowed entirety
on the collector.
The act provides that the bond thus taken
shall be transmitted to the Secretary Of the
reasury. Why transmit it to the Sccrcta-
ny, II 1t enured to the use Of the collector
only?
he additional act, howevcr,i is deemed con-
elusive on this point. That act declares that i'll
every case where u bond hath been given to
the u. -, under the act laying All embargo,
suit shall be instituted within four months, il
a certificate of reianding the cargo be not
produced. Now 10 bond is to be taken under
the act laying an embargo, but those which
are OF the same description with that on
which this suit is instituted. Consequently
the legislature contemplated this as boi,.
which was to be given to the United States,
but delivered to the collector. Had this Sd
section OF the additional act been inserted in
the original embargo act, the DOUBT wonld
probably never have been suggested. 1t is
not to be denied, that, with respect to this
bond, the case is to be considered as if the
two acts had formed one act.
the case decided before Judge Washing
ton in Pennsylvania, the bond was taken to
the United States, and / recollect one case
decided IN the supreme court, on a bond ia
ken under the same law in the same manner.
In the case in the supreme court, this objec-
ton was not made. If it was made before
Judge Washington, it was overruled.
But it the bond be admitted to pursue the
statute, in being made payable to the United
States, the condition varies essentially from it
A clause is inserted in the condition. not
Warranted by law, and an exception is made
by the law, which is not inserted in the con-
dltion. The bond therefore does not pursue
the statute. The question is whether the va
rance be such AZ to avoid the bond as sta
tutory obligation.
That the member of the condition not re-
CURED by the statute, ca OF be permitted to
! prejudice the obligors, is admitted by the at
torney tor the United States. But he con-
tends thatit Cannot Affect So ,nuCn or riic Cur-
uitlon ds pursue Chc statute.
The plaintiffs in error, insist that it VIII
ates the whole bond, because it makes the
instrument different one from that which
the collector was authorised to demand.
The cases adduced by neither party, ap-
pear to me to decide the question, nor have
been able to find one that does. If a statute
render bond void, which is taken for par
ticular object, and one be taken with Contli-
ton in part for this illegal object, and in part
tor other objects, not illegal, it is clear law
that the illegal part v;tiates the whole in
lstrument 1t is also believed, that, if bond
be given at common law, where both the OBJ
Igor and obligee are free agents, acting fol-
themselves on an equal footing, and part o.
the condition be void, but there is TO statute
annulHng the bond on account of that condi-
ton, the instrument is valid as to omuch as
is lawful.
But the case of bond taken under sta
tute taken by an officer, specially empowered
to take it, and containing additional conditi.
ons, not warranted by that statute, differs
essentially from either of these cases. The
general policy of the law must require that
the statute should be pursued, and the ma
ture of the case requires that the power
should be executed conformably to the act
creatingit If the form of the bond and con-
dition were prescribed, there could be nc
doubt OF the necessity of pursuing that form
strictly and literally. But the form of the
condition is not prescribed, and it must be
sufficient that the bond conforms substantial
ly TO the statute. But may the statute be ex-
Ceeded?
1t would certainly be mischievous to allow
officers to insert in the bonds they are en-
; powered to require, conditions not warrant
ed by law. Although courts and LAWYERS
may know that such Conditions have no cf-
feet, obligors may not know it, and this a.
buse of official power may very materially
affect the interests of individuals who NAV
; regulate their conduct OH the opinion that
they are bound to the full extent of the iu-
strument they have executed. That in this
, particular case the condition inserted may
not be in hostility to the general views Of
the legislature, cannot materially vary the
question for.it is not warranted by the sta
, tutc, and if the officer be at liberty under
: color of office to introduce such conditions As
his own Judgment may approve, then his judg.
ment and not the statute becomes the di-
! rector of his coniuct, Yet it is going far "a
say that for the insertion of even a ma
tcrial condition not warranted by law, not