« SebelumnyaLanjutkan »
under consideration than I could otherwise have wished, and now proceed to give you the result of this consideration.
It is a settled principle, both of law and in equity, that a surety can be no further bound than he has expressly bound himself by his own stipulation. Giving the sureties in the present instance the full advantage of this principle, let us see how far their stipulation extends; because thus far, and no farther, can we bind them.
The act of the 22d July, 1813, under which Mr. Reed was appointed, did not, itself, impose a direct tax. It was a measure preparatory merely to a system of direct taxation, to which the emergencies of the country had forced Congress to look. It was a measure of permanent preparation, not for the execution of a single direct tax, but for a course of them, through a succession of years, which was at that time manifestly in the contemplation of Congress. With this view, this act arranged the States into collection districts, provided for the appointment of assessors and collectors, and prescribed their duties in detail; which duties they were expressly required to execute whenever Congress should impose a direct tax. Such is expressly the language of the 4th and 5th sections; and the law is unlimited in point of duration. It is prospective, then, without limitation. It is a permanent arrangement for the assessment and collection of all future direct taxes, &c., that should thereafter be imposed by the authority of the United States; and the appointments to office made under its authority are also to be permanent. If no act imposing a direct tax had been passed at that session, the appointments must, nevertheless, have been made under the act of the 22d July; and the officers so appointed would have stood ready, according to the express language of the law, to have entered on the discharge of their duties whenever Congress should impose a direct tax, and as often as they should impose such taxes. The appointments being permanent, it is reasonable to anticipate that the bond of office required from the collector would be co-extensive with the tenure by which he held his office; that is to say, would bind him and his sureties so long as he should hold the office of collector. It is the 18th section of the act of the 22d July, 1813, which requires and prescribes the bond: "which bond shall be payable to the United States, with condition for the true and faithful discharge of the duties of his office according to law, and particularly for the due collection and payment of all moneys assessed upon such district." There is certainly nothing in this language which limits the obligation of this bond to the first direct tax that should be thereafter imposed; it is certainly general enough to look throughout the whole time during which the collector should hold the office, and to bind him and his sureties throughout. Unless there be something, therefore, to limit the generality of this stipulation, the obligor and his sureties must be bound to answer any delinquency which might thereafter occur, to the full amount of the penalty of the bond. The circumstances to be relied on as affecting this limitation are, I apprehend, these:
1. The collector is required to give this bond whenever the assessor is about to hand in to him a list of assessed property for collection, and before receiving such list.
2. The bond is required to be in at least double the amount of the taxes assessed in such list.
Hence, as Congress intended such bond to be given as often as any list was about to be handed to the collector, and has given the amount of such
list as the standard of the penalty of the bond, it may be argued, with great plausibility, that Congress intended each bond to stand as a security for the faithful collection of each list, separately and respectively; for the penalty, it will be said, of any bond, is too inadequate to found the belief that Congress intended to rely on any bond as the permanent bond of office. And this argument, it may be said, is fortified by the act of 9th January, 1815, (under which the delinquency in question is understood to have arisen,) whereby the collector, before receiving any list under that law, is also required to give bond, &c. To the last argument, however, it may be answered, that the same section of the act of 1815, which requires this new bond from the collector, expressly provides that nothing therein contained should be deemed to annul or otherwise to impair the obligation of the bond theretofore given by any collector: and to the whole argument, that the criterion given for the penalty of each successive bond was the only one which, from the nature of the case, could be safely assumed by Congress; that, if it had been their intention to limit the obligation of each bond to the particular list handed in, it would have been very easy to have given the bond this discriminating and special character; that the general language which they have prescribed for the condition of the bond is directly at war with the restricted purpose imputed to it; and that, from this generality of language, we are authorized to infer that Congress intended these successive bonds ex abundanti cautelâ, as so many reinforcements to the general purpose of securing a faithful discharge of the collector's duties-each bond binding from its date through
On the whole, I deem it the better opinion, that the sureties are bound for the delinquency, under the act of 1815, to the amount of the penalty of their bond.
I am, sir, &c.,
To the SECRETARY OF THE TREASURY.
OFFICE OF THE ATTORNEY General,
SIR: I have been indisposed since I received your communication of the evening before last, and am still unable to leave the house safely; which I hope will be my apology for having delayed my answer, and for making it now more imperfect than I could wish it.
The power of pardon, as given by the constitution, is the power of absolute and entire pardon. On the principle, however, that the greater power includes the less, I am of opinion that the power of pardoning absolutely includes the power of pardoning conditionally. There is, however, great danger lest a conditional pardon should operate as an absolute one, from the difficulty of enforcing the condition, or, in case of a breach of it, resorting to the original sentence of condemnation; which difficulty arises from the limited powers of the National Government. For example · you could not pardon on a condition to be enforced by the officers of a State Government-as, for instance, working at the wheelbarrow in the streets of Baltimore, under the superintendence of the town officers-because you have no political connexion with these officers, and, consequently, no
control over them. But suppose a pardon granted on a condition to be executed by officers of the Federal Government-as, for example, to work on a public fortification; and suppose this condition violated, by running away where is the power of arrest, in these circumstances, given by any law of the United States? And suppose the arrest could be made: where is the clause in any of our judiciary acts that authorizes a court to proceed in such a state of things? and without some positive legislative regulation. on the subject, I know that some of our federal judges would not feel themselves at liberty to proceed de novo on the original case. It is true, the King of England grants such conditional pardons by the common law; but the same common law has provided the mode of proceeding for a breach of the condition on the part of the culprit. We have no common law here, however; and hence arises the difficulty.
I understand from Judge Duvall, that convicts have been pardoned by the President of the United States on condition of joining the navy of the United States; evidence of which, if it be so, may, I presume, be found in the Department of State. This is a safe and practicable condition; for although in case of desertion the original sentence of condemnation could not be resorted to, yet the new offence of desertion leads to the same catastrophe. If a condition can be devised whose execution would be certain, I have no doubt that the President may pardon on such condition. All conditions precedent would be of this character; e. g., pardon to a military officer under sentence of death, on the previous condition of resigning his commission.
On the second question, whether pardon can precede condemnation, I am of the opinion that the President may, if he chooses, grant such pardon. There is nothing in the terms in which the power of pardon is granted, which requires that it shall be preceded by a sentence of conviction on the verdict of a jury. There is nothing in the force of the term pardon, which implies a previous condemnation. A pardon presupposes an offence, and nothing more. If the party confesses his guilt, every degree of certainty as to the fact of the perpetration of the offence is gained that a trial could gain; because, if he were arraigned and pleaded guilty, no jury would be empannelled, and no evidence would be heard in the case, but judgment would be entered on his own plea. But where a pardon is granted on the voluntary confession of one who has not been indicted, the confession should be in writing, and the pardon founded on the specific of fence confessed; in other words, it should be a special pardon, so as not to protect the party against a prosecution for any more aggravated offence than he has thought proper to confess. And it is proper to suggest further, that it would be much safer, as a general rule, to require a previous trial and condemnation; because all previous pardons must be granted on ex parte representations, by which the President may be deceived: whereas, on a full trial on the plea of not guilty, the court and jury will never fail to recommend to mercy, if there be any ground for such recommendation; and the President will thus be placed on a sure footing. The latter course, too, so far as I am informed, is more consonant with the general practice both of the State and Federal Governments; and is least exposed to discontent and censure, of which there is always danger from the adoption of a new, although a legal course.
I have the honor to be, sir, most respectfully, your obedient servant,
To the PRESIDENT OF THE UNITED STATES.
Office of the ATTORNEY GENeral,
SIR: A communication from Mr. Quabeck to the Secretary of State has been referred to me, by your direction, (as the endorsement on it informs me,) for my opinion, whether the relief prayed for can be granted by the President, consistently with the constitution and laws of the United States?
The relief prayed for is the remission of double duties on a quantity of glass imported by a house in Amsterdam, into the United States, incurred by the want of the consular certificate required by the act of Congress of the 18th April, 1818; of which act it appears that both the shippers and the American consul at Amsterdam were ignorant at the time the ship sailed from that place.
The case is a clear one for remission; but I am not apprized of any power which the President has to interpose in it. The power of pardon, given by the constitution, applies only to cases of crime and misdemeanor, which may be the subjects of prosecutions; and there is no act of Congress which authorizes the President to interfere in such a case.
It is sufficiently manifest that Congress intended to give the Secretary of the Treasury the power to remit the penalties imposed by this act, although the clause intended to confer the power is drawn in such a form as to defeat its own purpose.
I believe there is no relief short of an application to Congress.
To the PRESIDENT OF THE UNITED STATES.
OFFICE OF THE ATTORNEY General,
SIR: You ask my opinion on the following questions:
1. Is a person detained in prison as a witness in a criminal case, from his inability to give security for his appearance in the recognisance required by law, entitled to the compensation of a witness for the time he is so detained?
2. If he is so entitled, must not the expense of his subsistence be deducted from the compensation to which he would be entitled?
In answer to which, I have to state, that the only act of Congress now in force, which makes any provision on the subject of compensation to witnesses, is, I believe, the act of the 28th February, 1799, which gives to each witness one dollar and twenty-five cents for each day he shall attend in court, and five cents per mile for travelling expenses. I answer the first question, therefore, in the negative; and this is an answer to the second also. If there be any hardship in the case, Congress can remove it.
I have the honor to be, sir, most respectfully, your obedient servant, WM. WIRT.
To the SECRETARY OF THE TREASURY.
OFFICE OF THE ATTORNEY GENERAL,
SIR: I am of the opinion that saltpetre was free from duty under the laws of the United States on the 3d of May, 1803, when the importation of that article was made by Gibbs & Channing into Newport, Rhode Island.
The exemption of that article from duty was declared by the act of the 4th July, 1789, laying a duty on goods, wares, and merchandise, imported into the United States. It was repeated by the act of the 10th August, 1790, "making provision for the payment of the debts of the United States;" and was again repeated by the act of the 2d May, 1792, "for raising a further sum of money for the protection of the frontiers, and for other purposes therein mentioned." These are permanent acts, fixing the rate of duties; all of them declaring the exemption of saltpetre from duty.
The acts relied on as repealing this exemption are two; which were passed in 1797 and 1798, in the expectation of an immediate rupture with France. The first of these is the act of the 14th June, 1797, "prohibiting, for a limited time, the exportation of arms and ammunition, and for encouraging the importation thereof." By the 5th section of this act, arms of a certain description (theretofore subject to duty) which should be imported into the United States within one year, and all sulphur and saltpetre which should be imported within two years after the passing of that act, were declared free of duty, any thing in any former law to the contrary notwithstanding. The second is the act of 7th April, 1798, "to continue in force" the former act. By the 2d section of this act, the provision of the act of 1797 as to sulphur and saltpetre, which has been just cited, was continued in force for one year from and after the 14th June, 1800, and from thence to the end of the next session of Congress, and no longer. At the end of this time, then, the provisions of the act of 1797 ceased.
But is it declared that the provisions of the acts of 1789, 1790, and 1792, shall cease? It is not. Those acts (constituting one act, because they were in pari materiá) formed a permanent system of tariff, which, in my opinion, remained wholly unaffected, so far as saltpetre is concerned, by the acts of 1797 and 1798:
1. Because these latter were temporary acts, looking to temporary purposes, widely different from the purpose of establishing a tariff.
2. Because they contain no provision of repeal as to the duty-laws. 3. Because these laws had themselves expired in May, 1803, so as to be incapable of operating a perpetual repeal of a permanent law.
4. Because they never professed to do more than to continue for a limited time an exemption which had been previously established by a perpetual law; and it has been expressly decided in England, that "if a statute, before perpetual, be continued by an affirmative statute for a limited time, this does not amount to a repeal thereof at the end of that time." A decision which I take to be in point.
I have the honor, &c.,
To the SECRETARY OF THE TREASURY.