State; and where the improvement was re-struction of the act of Assembly, we do not garded as of the highest importance to its gen- understand that the right of the State to release eral commercial prosperity; it deliberately de- it is disputed. Certainly the power to do so is prived itself of the power of exercising any too well settled to admit of controversy. The future control over it, and left it to a single repeal of the law imposing the penalty, is of county or county corporation to decide upon itself a remission. (1 Cranch, 104; 5 Cranch, the course of the road, and either to insist on 281; 6 Cranch, 203, 329.) And in the case of the line prescribed by the Legislature, or to re- The United States v. Morris (10 Wheat., 287) lease the company from the obligation to pursue this court held, that Congress had clearly the it, without regard to the wishes or interest of power to authorize the Secretary of the Treasthe rest of the State. Whether the million of ury to remit any penalty or forfeiture incurred dollars was reserved by contract, or inflicted as by the breach of the revenue laws, either bea penalty, such a construction of the law cannot fore or after judgment; and if remitted before be maintained. the money was actually paid, it embraced the shares given by law in such cases to the officers of the customs, as well as the share of the United States. The right to remit a penalty like this stands upon the same principles. But we think it very clear that this was a penalty, to be inflicted if the railroad company did not follow the line pointed out in the law. It is true, that the Act of 1835, which changed in some important particulars the obligations imposed by the original charter, would not have been binding on the company without its consent; and the 1st section, therefore, contains a 552*] provision requiring the consent of the company in order to give it validity. And when the company assented to the proposed alterations in their charter. and agreed to accept the law, it undoubtedly became a contract between it and the State; but it was a contract in no other sense than every charter, whether original or supplementary, is a contract, where rights of private property are acquired under it. Yet, although this supplementary charter was a contract in this sense of the term, it does not by any means follow that the Legislature might not, in the charter, impose duties and obligations upon the company and inflict penalties and forfeitures as a punishment for its disobedience, which might be enforced against it in the form of criminal proceedings, and as the punishment of an offense against the law. Such penal provisions are to be found in many charters, and we are not aware of any case in which they have been held to be mere matters of contract. And in the case before the court, the language of the law requiring the company to locate the road so as to pass through the places therein mentioned, is certainly not the language of contract, but it is evidently mandatory, and in the exercise of legislative power; and it is made the duty of the company, in case they assent to the provisions of that law, to pass through Cumberland, Hagerstown, and Boonsborough; and if they fail to do so, the fine of $1,000,000 is imposed as a punishment for the offense. And a provision, as in this case, that the party shall forfeit a particular sum, in case he does not perform an act required by law, has always, in the construction of statutes, been regarded not as a contract with the delinquent party, but as the punishment for an offense. Undoubtedly, in the case of individuals, the word forfeit is construed to be the language of contract, because contract is the only mode in which one person can become liable to pay a penalty to another for a breach of duty, or the failure to perform an obligation. In legislative proceedings, however, the construction is otherwise, and a forfeiture is always to be regarded as a punishment inflicted for a violation of some duty enjoined upon the party by law; and such, very clearly, is the meaning of the word in the act in question. In this aspect of the case, and upon this con *We are, therefore, of opinion, that [*553 the law of 1840, hereinbefore mentioned, did not impair the obligation of a contract, and that the judgment of the Court of Appeals of Maryland must be affirmed. JAMES STIMPSON, Plaintiff in Error, V. WESTCHESTER RAILROAD COMPANY. Certiorari, motion for-exccptions to charge of court should be specific-exceptions certified under seal not amended on certiorari-errors in framing exceptions not corrected here. The 38th rule of court forbids the insertion of the whole of the charge of the court to the jury in a If the omission of a part of the charge, which was in fact embraced in the exception, is a mere clerical error, the party will be entitled to a certiorari, upon producing a copy of the exception, properly certified. the seals of the judges of the Circuit Court be But in no case can the exception certified under altered or amended. A suggestion was made, in this case, of diminution in the record, and a motion for a certiorari to bring up the charge which the court delivered to the jury on the trial of the cause in the Circuit Court of the United States for the Eastern District of Pennsylvania. Mr. Chief Justice TANEY delivered the following opinion of the court: The plaintiff in error in this case suggests that there is diminution in the record, in omit ting the charge to the jury which was delivered at the trial by the Circuit Court, and moves for a certiorari, that it may be set out at length, and appended to the record. So much of the charge of the court as was excepted to at the trial, is inserted in the record as it now stands; and by the 38th rule of this court, adopted at January Term, 1832, it was "Another important question," &c., yet no question appears. The manuscript must be consulted in order to give meaning or object to the phrase. The counsel for the defendant in error would probably learn with some surprise, that this ap ordered, that thereafter "the judges of the circuit and district courts do not allow any bill of exceptions, which shall contain the charge of the court at large to the jury, in trials at common law, upon any general exception to the whole of such charge. But that the party excepting be required to state distinctly the sever-plication has been refused. In the paper book al matters in law, in such charge, to which he excepts; and that such matters of law, and those only, be inserted in the bill of exceptions, and allowed by the court." The record now before us contains as much of the charge as is authorized, by this rule, to be inserted in the exception, and the motion for a certiorari must therefore be overruled. 554*] *Mr. J. R. Ingersoll afterwards filed and read in open court, the following suggestion in writing, to wit: In the printed record, a mere omission is made of a portion of the manuscript charge. 1. After the reference to Evans v. Jordan (9 Cranch, 201, printed record, p. 30, near the bottom of the page), there are four and a half pages of manuscript (pages 26, 27, 28, 29, 30). 2. On page 27 of the manuscript are these words: "It thus appears that the Act of 1839 goes only one step beyond those of 1832 and 1836, and is a dead letter, if it protects the person who has purchased, constructed, or used the machine invented," &c. A memorandum indorsed by Judge Baldwin, "Stimpson v. Westchester Railroad Company. Exceptions to the charge." In this memorandum are found the following words: "7 sec. Act of 1839 goes only one step beyond those of 1832 and 1836, and is dead letter so far as protection against such subsequent use." 3. On page 30 of the manuscript charge are these words: "In the case before us, it clearly appears that the defendants constructed their railroad with the plaintiff's curves, in 1834, one year or more before the plaintiff's application for his renewed patent, consequently they may continue its use without liability to the plaintiff." which that counsel has caused to be printed (page 3), third paragraph, the 7th section of the Act of 1839 is quoted, and supported *by points and references. All this is [*555 without object or origin in the printed record. The source of it is dried up by the omission of the copyist. So page 4 of that paper book, No. 6, "under the Act of 1839, &c." These remarks are applicable only to the omitted parts of the charge. The counsel for plaintiff in error, who now moves for a certiorari, was not present at the trial, but his colleague, who tried the cause, informs him that the judge undertook to put the whole charge on the record, and the concluding words along with it. Thus, 1. The whole charge, under the promise of the judge, ought to be a part of the record. 2. The omitted parts in the printed record are the essence and substance of the case, admitted by the judge to be such, and specifically excepted to at the moment. 3. The whole difficulty arises from a mere inadvertence of a clerk. 4. Extreme injustice will be done if the clerical omission be not corrected. 5. Were the judge living, verbal explanations might be given by him, but not more precise, perhaps, than the written indorsement or the memorandum of counsel. Finally, the printed record shows that the judge put the case on two points: First, was the second patent void? The judge decided that it is. Second, if the second patent were not void, then, can the plaintiff recover, when the specific machine used by the defendants was first made and used by them before the second patent was taken out? The same memorandum, indorsed by Judge This second point, according to the printed Baldwin, contains these words; "As defend-record, the judge states, but does not decide, or ants made railroad in 1834, they may continue use." Thus it will be perceived, the very points objected to in writing, and the writing received and admitted to be such by Judge Baldwin, are omitted in copying the charge at the clerk's office at Philadelphia. The language of the charge, as written out, is somewhat more extended than that of a memorandum hastily made, while it was delivered, but it is, throughout, substantially, and in part, literally the same. The "important question" in the case was, the defendants' right to use, after the date of the second patent, the specific machine constructed and used by them before the date of that patent. This question, according to the printed record, is not decided at all, nor left to the jury, nor any result arrived at in regard to it. The whole charge is not wanted, but only those parts distinctly excepted to at the moment, and inadvertently omitted by a copyist. It is obvious, besides, that the charge, or the fragment of a charge printed, is not only elliptical, but insensible. The judge says (page 30): put in such shape as to let the jury decide. His conclusion is omitted, while his premises are stated. And a correction of this is the subject of the certiorari. Mr. Ingersoll then moved the court for a writ of certiorari to be directed to the judges of the Circuit Court of the United States for the Eastern District of Pennsylvania, commanding them to certify forthwith whatever errors and omissions shall be found. Upon which motion, Mr. Chief Justice TANEY delivered the opinion of the court: A motion was made at a former day of the present term for a certiorari to bring up the charge delivered by the Circuit Court at the trial, to be set out at length, and appended to the record. This motion was overruled for the reason then stated by the court. The motion has since been revived, and a copy of what purports to have been the charge of the court at length has been produced, in order to show that a material point in it has not been inserted in the exception, as [*556 brought up in the record; and some memorandums in the handwriting of the late presiding judge of the Circuit Court have also been laid before this court for the purpose of showing that an exception was reserved to the part of the charge above referred to. or In relation to the exception stated in the record, the court think it proper to say, that it contains a great deal of argument which is altogether out of place in an exception, and contrary to the directions of this court as given in the 38th rule. And it would appear, from the copy of the charge produced in support of this motion, that while much of the argument of the Circuit Court has been improperly inserted, the matter of law which the argument was intended to prove, and upon which the jury were instructed, is omitted. But this court has not the power to correct any errors omissions that may have been made in the Circuit Court in framing the exception; nor can we regard any part of the charge as the subject matter of revision here, unless the judges, or one of them, certify, under his seal, that it was excepted to at the trial. If the portion of the charge, in relation to which the diminution is suggested, was in fact embraced in the exception, and the omission of it is a clerical error, then, upon producing here a copy of the exception properly certified, the plaintiff in error will be entitled to a certiorari, in order to supply the defect. But we can in no respect alter or amend the exception certified under the seals of the judges of the Circuit Court, either by referring to the charge at length, or the notes of the presiding judge; and as the case is now presented, the motion must be refused. THE UNITED STATES, Plaintiffs, WILLIAM H. FREEMAN. Construction of statutes-brevet officers of marine corps, pay and emoluments-double rations. Statutes in pari materia should be taken into consideration in construing a law. If a thing contained in a subsequent statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute. And if it can be gathered from a subsequent statute in pari materia what meaning the Legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute. The meaning of the Legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the Legislature proceeded, from the end in view, or the purpose which was designed; the limitation of the rule being, that to extend the meaning to any case, not included within the words, the case must be shown to come within the same reason upon which the law-maker proceeded, and not a like reason. A brevet field officer of the marine corps is not entitled by law to brevet pay and rations, by reason of his commanding a separate post or station, if the force under his command would not entitle a brevet field officer of infantry of a similar grade to brevet pay and rations. 557] *The Act of 1834, chap. 132, does not repeal the 1st section of the Act of 1818, regulating the pay and emoluments of brevet officers. The 5th section of the Act of 30th June, 1834, is a repeal of the joint resolution of the two houses of Congress of the 25th May, 1832, respecting the pay and emoluments of the marine corps. By force of the Army Regulation No. 1125, au thorizing the issues of double rations to officers commanding departments, posts, and arsenals, a brevet field officer of marines is entitled to double rations. But the fact must be shown that he had such a command of a post or arsenal at which double rations had been allowed according to the army regulations. The fact of appropriations having been made by Congress for double rations does not determine what officers are entitled to them. A brevet field officer of the marine corps, commanding a separate post, without a command equal to his brevet rank, is not entitled to brevet pay and emoluments. But if such brevet officer is a captain in the line of his corps, and in the actual command of a company, whether he is in the command of a post or not, he is entitled to the compensation given by the 2d section of the Act of the 2d March, 1827. This case came up on a certificate of division from the Circuit Court of the United States for the District of Massachusetts. It was to test the right of the defendant in error, who was also the defendant below, to certain pay, allowances, and emoluments, which he claimed as being an officer of the marine corps. The questions which were certified to this court were the following: "1. Whether a brevet field officer of the marine corps is by law entitled to receive the pay and rations of his brevet rank by reason of his commanding a separate post or station, although the force under his command should not be such as would by law, or by such regulations as have in this respect and for the time the force of law, entitle a brevet field officer of infantry of a similar grade to brevet pay and rations. "2. Whether the provision respecting brevet pay and rations in the 3d section of the Act of 1818, chap. 117, is repealed by the Act of 1834, chap. 132. "3. Whether by force of the Act of 1834, chap. 132, the joint resolution of the two houses of Congress of the 25th of May, 1832, respecting the pay and emoluments of the marine corps, is repealed. "4. Whether by force of the army regulation. numbered 1125, authorizing the issues of double rations to officers commanding departments, posts, and arsenals, a brevet field officer of marines, commanding a separate post or station, is entitled to double rations. "5. Whether the additional fact of appropria tions having been made by Congress for such double rations, entitles such marine officer to receive the same for the years for which such appropriations are made. "6. Whether a brevet field officer of the marine corps, commanding a separate post, and receiving his brevet pay and emoluments, but being a captain in the line, is entitled to the ten dollars a month additional compensa- [*558 tion for responsibility of clothing, &c., under the Act of 1834, chap. rine corps the Act of 1827, chap., 199." applying to the ma There was a statement of facts agreed upon in the court below, the only parts of which that bear upon the certified questions are the following: "It is further agreed that Colonel Freeman was commissioned a captain in the line of the marine corps on the 17th of July, 1821, and on that lineal rank he was commissioned a lieutenant-colonel by brevet on the 17th of July 1831, and on the 30th of June, 1834, he was commissioned a major in the line of the marine corps. "Colonel Freeman files an account, in setoff against the United States, of $1,013.93, for brevet pay and rations while in command on the Boston station, the same being a separate station or detachment, under "the provision of the 3d section of an act of Congress of 16th April, 1814, for the augmentation of the marine corps. Said amount extends from the 30th of June, 1834, to the 1st of April, 1842, and has been presented to and disallowed by the fourth auditor. "Said Freeman files an account also of $1,669 for double rations while in command on the Boston station, between the 30th of June, 1834, and the 1st of April, 1842, under a joint resolution of Congress of 25th May, 1832; which account has also been presented to and disallowed by the fourth auditor. "Said Freeman files also an account of $354.69 for the responsibilities of clothing, &c., while a captain in the line of the marine corps, and in command of the marines on the Boston station, from the 17th of July, 1831, to the 30th of June, 1834, under an act of Congress of 30th June, 1834, making certain allowances, &c., to the captains and subalterns of the marine corps, as to officers of similar grades in the army, under an act of 2d March, 1827; which account has likewise been presented to and disallowed by the fourth auditor of the treasury, on the ground that the defendant received the pay of a grade higher than that of captain. "It is further agreed that double rations have been paid heretofore and up to the 30th of June, 1834, to the officers of the marine corps, in the manner and as stated in the letter of the fourth auditor of date 27th of April, 1842, and marked B, and annexed; also, that estimates and appropriations were made, as stated in said letter, since 1834. "Upon the foregoing facts, the case is submitted to the court; the accounts of the said several claims of the said Freeman to be adjusted hereafter by the officers of the treasury, if the same, or any portion of them, are found by the court to be legally due. On the 16th of April, 1814, Congress passed an act (2 Story, 1414) "authorizing an augmentation of the marine corps, and for other purposes," the 3d section of which was exactly similar to the above, except that "officers of the marine corps" were substituted for "officers of the army," and that in the proviso the words "commanding separate stations or detachments" were substituted for "commanding separate posts, districts, or detachments." On the 16th of April, 1818, an act was passed (3 Story, 1672) "regulating the pay and emoluments of brevet officers," the 1st section of which was as follows: "Be it enacted, &c., That the officers of the army who have brevet commissions shall be entitled to, and receive, the pay and emoluments of their brevet rank when on duty and having a command according to their brevet rank, and at no other time." In 1825, regulations for the army were issued; the 1124th section was as follows: "Brevet officers shall receive the pay and emoluments of their brevet commissions, when they exercise command equal to their brevet rank; for example-a brevet captain must command a company; a brevet major and a brevet lieutenant-colonel, a battalion; a brevet colonel, a regiment; a brevet brigadier-general, a brigade; a brevet major-general, a division." On the 30th of June, 1834, Congress passed an act "for the better organization of the United States marine corps" (4 Story, 2383.) After increasing the number of officers and privates, the 5th section enacted: "That the officers of the marine corps shall be entitled to, and receive, the same pay, emoluments, and allowances, as are now, or hereafter may be, allowed to officers of similar grades in the infantry of the army, except the adjutant and inspector, who shall," &c., &c. *The 7th section provided that "the [*560 commissions of the officers now in the marine corps shall not be vacated by this act," &c. The 9th section repealed so much of the 4th section of the Act of the 6th of July as authorized the President to confer brevet rank on such officers of the army or of the marine corps as "Franklin Dexter, U. S. Dist. Att'y. shall have served ten years in any one grade. "W. H. Freeman." 559*] *The laws will be stated which bear upon each of the three items into which the account is divided, viz.: 1. Pay. 2. Rations. 3. Clothing. 1. As to pay. On the 6th of July, 1812 (2 Story, 1278) Congress passed an act entitled "An Act making further provision for the Army of the United States, and for other purposes," the 4th section of which was as follows: "That the President is hereby authorized to confer brevet rank on such officers of the army as shall distinguish themselves by gallant actions, or meritorious conduct, or who shall have served ten years in any one grade: Provided, That nothing herein contained shall be so construed as to entitle officers so breveted to any additional pay or emoluments, except when commanding separate posts, districts, or detachments, when they shall be entitled to and receive the same pay and emoluments to which officers of the same grade are now, or hereafter may be, allowed by law." The 10th section repealed all acts or parts of acts inconsistent therewith. In 1836, another set of army regulations was issued, the forty-eighth article of which contained the following: "Officers who have brevet commissions shall be entitled to receive their brevet pay and emoluments, when on duty, under the following circumstances: "A brevet captain, when commanding a company. "A brevet major, when commanding two companies, or when acting as major of the regiment. "A brevet lieutenant-colonel, when commanding at least four companies, or when acting as lieutenant-colonel of the regiment. "A brevet colonel, when commanding nine companies of artillery, or ten of infantry or dragoons, or a mixed corps of ten companies, or when commanding a regiment. "A brevet brigadier-general, when commanding a brigade of not less than two regiments or twenty companies. "A brevet major-general, when commanding a division of four regiments or at least forty companies. "A brevet officer, when assigned by the spe cial order of the Secretary of War to a particular duty and command, according to his brevet rank, although such command be not in the line, provided his brevet allowances are recognized in the order of assignment. "To entitle officers to brevet allowances while acting as field officers of regiments according to their brevets, they must be recognized at general headquarters as being on such duty, and the fact announced accordingly in general orders." 3d. That the joint resolution of the two houses of Congress, of the 25th of May, 1832, is repealed by the Act of 1834, chap. 132. 4th. That a brevet field officer of marines, commanding a separate post or station, is not entitled to double rations by force of Army Regulation, numbered 1125. 5th. That the additional fact of appropriations having been made by Congress for double rations, does not entitle such marine officer to receive the same, if otherwise not entitled thereto by law. 6th. That a brevet field officer of marines is not entitled to the $10 a month, under the Act stated in the sixth question, certified in the rec ord. The laws relating to rations are the follow- of 1834, chap. 132, under the circumstances ing: 2. Rations. On the 3d of March, 1797 (1 Story, 460), Congress passed an act to amend and repeal, in part, the Act entitled "An Act to ascertain and fix the military establishment of the United States," the 4th section of which declared that "to each officer, while commanding a separate post, there shall be allowed twice the number of rations to which they would otherwise be entitled." On the 16th of March, 1802 (2 Story, 831), an act was passed "fixing the military peace establishment of the United States," the 5th section of which designated the number of rations to which each officer should be entitled, and then added as follows, viz.: "to the commanding officers of each separate post, such additional number of rations as the President of the 561] United States shall, from time to time, direct, having respect to the special circumstances of each post.' On the 25th of May, 1832 (4 Story, 2333), Congress passed a joint resolution as follows: "Resolved, &c., That the pay, subsistence, emoluments, and allowances of officers, non-commissioned officers, musicians, and privates of the United States marine corps, shall be the same as they were previously to the 1st of April, 1829, and shall so continue until they shall be altered by law." In 1834, the act was passed which has already been mentioned under the head of "Pay." 3. Clothing. On the 2d of March, 1827, Congress passed an act (3 Story, 2057), the 2d section of which was as follows: That every officer in the actual command of a company in the army of the United States shall be entitled to receive $10 per month, additional pay, as "compensation for his duties and responsibilities, with respect to the clothing, arms, and accoutrements of the company, whilst he shall be in the actual command thereof." He examined the subjects in the order mentioned above, of Pay, Rations, and Clothing. 1. Pay. He admitted that if the Act of 1814 is still in force, the defendant is entitled to brevet pay; but it is not in force. The Act of 1834 has changed the law; the 5th section puts the marine corps on the same footing with the infantry. What, then, were the infantry entitled to? To answer this question, we must look at [*562 the laws of 1812 and 1814 (the same in substance upon this point) and also the law of the 16th April, 1818, which expressly declares that officers of the army shall receive brevet pay when they have a command according to their brevet rank, and at no other time. Before they can claim the pay, the condition must be shown to be complied with; but here it is admitted that Colonel Freeman had not such a command. The Army Regulations of 1825, reg. 1124, say that brevet officers are to receive pay only when the command is equal to the rank; and those Freeman was a lieutenof 1836 say the same. ant-colonel by brevet, and had not the command appropriate to that rank. Does the Act of 1834 repeal that of 1814? We say it does. It purports to re-organize the marine corps; it makes great changes as to the officers and their rate of pay; and the 7th section provides that the commissions of the officers shall not be vacated. Why put in such a clause, unless there was a design to put the section changes the pay, emoluments, and al corps upon a new footing altogether? The 5th lowances, and puts them on the footing of infantry; and the 10th section repeals all laws inconsistent with the act. The acts of 1818 and 1834 repealed all former laws, both as to infantry and marines. 2. Rations. By the Act of 1797, double rations were given to a commander of a separate post; but the Act of 1802 changed this rule, and substituted anMr. Nelson, Attorney-General, for the United other. Instead of giving them to every comStates. Colonel Freeman, in a printed argument, the defendant in the court below, for himself. Mr. Nelson made the following points: 1st. That a brevet field officer of the marine corps is not by law entitled to receive the pay and rations of his brevet rank, under the circumstances stated in this case. 2d. That the provision respecting brevet pay and rations, in the 3d section of the Act of 1818, chap. 117, is repealed by the Act of 1834, chap. 132. mander, the President was to designate the number of rations for each post, according to cir cumstances. This was a repeal of the Act of 1797. They cannot both stand. But it is said that the joint resolution of 1832 changed the rule, as to officers of marines, and rendered lawful the same pay, rations, &c., which they had, in fact, received before 1829. Suppose we admit this. That resolution looked to a future change, which was made by the Act of 1834, which referred not only to pay, but allowances and emoluments. Infantry are not |