The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-08-21

words ~ another writer. that The power 10 gsasra
end unqualified ssd thai tho rcuisssoa u dses, %
Included in IL" (upinioas Of Attorney Gsnslsl.
os iii. po.er, Mr. Justice Story sSus rsmSks.-
81 he rover Of romsseu Of fines. pcaslties sad fer
fciurss. - also eloded In it; and usy in the last
resort. be exercised BY the Executive although 4.
IL Ia many casee by our ass con1acd 10 the Trcsusy
DEPARTMENT No lac oaa abIidgc the cosstitutisnsl
powers OF The executive departDeeto interrupt It's
tight 20 tnserfsr by PARDON la such lnaancos
Of the sxscse o. this rawcr BY the President 10
rit'iae ho-s snd penalties IN cases not within the
scope 81 the laws, giving authority 10 the Treasury
Department. bsv, repeatedly occurredS aud their
obligatory force hss never besn questioned" (story,
Com. On Constitution. vol II. sec. 800
IL has been decided by the saprcme Court, after
elsboiae stgumeut thai the 80 aetavy Of the rrea-
sury has saiho,iy. unaer the Rsnirsisu Act 81 The
I'd March. 1871, esp Joi, 70 rculit sorfeiture OF
penalty aocring uneerske revenue ls~s at any time
before or sits' fnal sentence 81 condemnation or
judgment Coz the pcusity until the money sstu ally
paid 10 the Collector fsr distribution snd sach
permission extencs the shares Of tho frfoitare
penalty to which the cshce Of the customs ara eati
tied well 60 the interest Of tbs unitcc states
In giving his opinion In this case. Mr. Justice Jehu
son, Of South Carolina, made use Of language much
in point Mercy and justice" be said, "could ony
have been administered By halves n collectors % aid
have hurried CAUSES 20 Judgment. ard then elaag 20
the one hs " the fVrfcitsfe. In contempt OF the
cries OF distress, or .he maadaies n the Secretary
W
A case has occurred In Kentucky. 20 vhich refer
enee has been already made Ia which Il l. cotGdeHt.
~ sad brosdly assumed that 'he psrdouing power
(under the Cunst:tuiCnl extends eyen 10 the PENAL
ties due 10 iniorDefs The folio sne ts age o,cars
10 the opinion Of the Cesv '' The act ~ ls1l ssys
that any prosecuting attorney. who shall prosccat
any person 10 conviction nader IL, shall be enlitled
70 20 per cent ~ tie amount 81 such fire shall be
collected The act gives the Prosecuting aitorncy
one fourth az tho money whoa collected, but yes,
him with 70 interest Ia the a. cr sentence sega
rate aud distinc, frem that q the ccmnonueAith.
that would screen his share from tie eject Of any
legal operation which should, before collection, alb
rogate the whu'e or a part ~ H. II would require
language ofthe strongest and most exp Oh ctGracte
70 authorize presumption that the legida'0re Ia
tended 20 confer any such right We could rever
presume an intention 10 eoGtro tue Goytrnor's con.
stitutionnl power 70 remit dnes and f,rfoiturcs.
he can ia this way be restrained In the exercise Of
his power To remit, fer tue fourth of a hne, 50
can he be from the half or the whole. Tnr
part Of his prerogstive cannot be cgrtalcd.
With the exception Of tee case Of treason, his
power to remit fines anc for.eitues grant rcpr,eves
and pardons, unlimited iliimitab!e aud uneoatrol
Liable. IL has nc bounds bat Lis own discretion. Ii
ia no doubt polite and proper for the Logia TO
ncite prosecuting attorneys aud informors. by Civ
ing them portion OF limos when collected bat 10
50 doing, the citizen cannot be debarrcd oLis right
Of appeal 70 executive clemency.' Routt " Elem.
ster, u. j Marshall, 1872.
According to these authorities, il seems rcasona
BILE 70 infer, that, under the constitution Of the
United States tie pafdoning 10 yer. which Is clear
~ applicable to the offence Of transporting"
slaves out OF the district might remit the penalties
in question. These penalties, though allotted to
the owners and the county, when finally collected,
are neither more nor less than the punishment, un
der sentence of criminal court for an offence OF
which the parties sta I'D convicted upon ndi.tment.
They can be collected and acquitted only by the
United States No process for this purpose Is at
the command Of tie slave owner. He had no Coz
troll whatever over the prosecution, at any stage,
~t.Esx
The very statute, under which these public pro-
ceedpgs instituted, in the name Of the United
States, secured to the slave owner his private sc
ton On the case for DANA ges-thus separating the
the duty Of the President TO keep separate except
on the final collection and distribution Of the pcual
ties Public policy and the ends Of justice require
that the punishment for criminal offence should,
in every case, DO exclusively subject to tle supreme
pardoning power, without dependence upon the will
of any private person. An obvious case viii illus
trate this Suppose, in tno case Of Draytcn sayrs
it should be aceytained beyond doubt that the con-
tue Of the Judgment. the slave owners have
interest in tie imprisonment Of these
men, which cannot le touched, then the rr-
sorers, unable 60 meot these heavy Liabilities,
must continue in perpetual Imprisonment, or ore
their release to the accident Of private good viii
The President, notwithstanding lis bere iccnt power
TO PARDON under the constitution. vii. b, Iowcrcas
to remedy this evil But such state Of things would
tuition is ,noastrous, which thus ties his haods.
Mercy and justice would bc rendered no. merely by
halves; but owing to the inability ofprslners, frou
poverty. to pay the ether half Of the ere, they
would be entirely arrested
The power Of pardon, ehich is attached by the
constitution, TO oaonces, generally. shsult 10. be
eursailee Il is generous prevcg ative and should
be exercised generously Bosi 5edics IS, Q;a,fiarc
yi1erisd,ctioacfs This Is old maxim Of the Jaw
But fit be the duty Ct coed judge to extend his
jurisdiction. how much moro true i i the auty Of
good President to extend the Geld Of his clemcncy
At least, small doubt should deter him from tho
exercise ofhis prerogativa
The conclusion from this review IS as foilows:-
!. BY the English common law, the costs and
one halt Of the Gnes may be reEitted II Is not GER
tain that by this law, as adopted in tue United
States, the other half of the fines may not also be
RENTED.
2 Under the statutes Of Maryland, now the law
Of the District, tho Governor and, OF course, the
President, may remit "tLe whole or any part OF any
fine" without exception
g. Under the constitution Of the United States
and according to its true spirit, the pardoning
power of the President is co-extensiTe with the
power to punish, EXCEPT IN the solitary case Of i'm
peacbment.
Several courses arc oren to tho President ia the
present case.
/. BY genera, pardon, he may discharge Drayton
ani Sayrs from prison, and remit all the fines and
costs for which they are detained Such a pardon
would e6ectualy operate unquestionabiy upon tho
Imprisonment sad upon tic costs, and also to the
half Of the fines due TO tho county. lt would be
for the courts proper applications and in the
else Of .1er just powers, &c restranit if the pardon
did net operate upon the other noiety.
Among tie opinions of the Attorney General is o
epse which illustrates this point. In 1924, one
Joshua Wingold, prayed for credit, in the settle
mcnt Of his accounts, for his proportion Of o ENC
incurred by one L. Narney. 1t appeared that suit
was instituted b. the petitioner, Collector OF the
District Of Bath, Maine; On which judgment was
obtained in MAY, 1909; the defendant was arrested
ard committed to jei, under execution on that
Judgment; ard the fuo afterwards RENTED hy the
President The petitioner coetonded that the Pre-.
sdent had no constitutional legel power TO remit
his proportion Of the Ere, the right 10 which ha
vested by The Institution Of tie suit. On this Mr.
Writ remarks that It Is unnecessary 70 express, an
cause, f il be correct the act of remission by tie
President, being wholly inopera.iye TO that por
ton Of the iue claimed by tic collector, biz les ri