§ 210. A pardon by the president for an offense is a bar to a civil suit for a penalty for the same acts.

Little need be said about the plea of pardon, because if the indictment and sentence of McKee were for the same offenses, both in law and in fact, för which this action is brought, it is conceded that the pardon is also a bar to the civil suit. If it is not conceded, we have no doubt that it is so. As it stands in connection with the averments of the answer, we hold it to be a good plea. Whether it would be a good bar to an action for acts not included in that prosecution, but of the same character, we need not now decide, though I have, personally, a strong opinion that it would be. The demurrer is overruled.

DILLON, J., concurs.

§ 211. Pardon by president - Extent and effect of.- Whether the pardoning power of the president extends to the barring of private inchoate interests in suits for penalties and forfeitures, quære? United States v. Lancaster,* 4 Wash., 64.

§ 212. The president's remission of a fine or penalty, imposed upon a conviction for an offense against the postoffice laws, is of no effect if the fine has been paid before the granting of the remission. In such case the money cannot be refunded without an appropriation by congress. Smith's Case,* 10 Op. Att'y Gen'l, 1.

§ 213. The power of the president to pardon "offenses against the United States" does not extend to forfeitures enforced by proceedings in rem. Nor can the president afford relief against a judgment entered upon a bond accepted by the court as a substitute for the thing seized. Case of Steamboat Minnesota,* 11 Op. Att'y Gen'l, 122.

§ 214. A pardon granted by the president, after reciting that it being made known to him that proceedings are still pending against said L. on a bond given which was forfeited in consequence of a violation of the embargo law, proceeded to remit "all the interest of the United States in the penalty or forfeiture of said bond, so far forth as the said L. is concerned therein, willing and requiring all further proceedings in the case, on behalf of the United States, to be forthwith discontinued and discharged." Held, that only the interest of the United States, and not that of the custom-house officers in a moiety of the penalty, was remitted or affected by the pardon. United States v. Lancaster,* 4 Wash., 64.

§ 215. Where a party sentenced to fine and imprisonment in a criminal prosecution, for conspiracy to defraud the United States of its revenue, is pardoned by the president of the conspiracy, such pardon cannot embrace any other offense for which separate penalties and punishments are prescribed. In re Weimer,* 7 Rep., 38.

§ 216. Remission by secretary of the treasury. The object of vesting a remitting power in the secretary of the treasury is to relieve in cases where courts are bound to inflict penalties. Under the collection laws courts must decide " according to the law," which means that if the fact which works a forfeiture be proved, the court must decide without reference to the innocence of the person to whom the forfeited article belongs. United States v. Morris,* 1 Paine, 209.

§ 217. The secretary of the treasury has no power to remit penalties except as provided by law. If he recites his authority under a special act, and remits in pursuance of that act, the remission, if unsupported by such act, cannot be supported under the general act of March, 1797. The Margaretta and Cargo, 2 Gall., 515.

§ 218. The power conferred on the secretary of the treasury by the act of January 2, 1813, to remit any fine incurred by any importer of goods, wares and merchandise from Great Britain, which were shipped between the 23d of June and December 23, 1812, if it appeared to the satisfaction of the secretary, upon petition of the claimants, that the property was, bona fide, owned by a citizen or citizens of the United States, extended to the case of a joint interest between citizens of the United States and Great Britain, and might rightfully be exercised in favor of such joint owners, being citizens of the United States. Gallego v. United States, 1 Marsh., 439.

$219. Under the act of February 27, 1813, the secretary of the treasury has no authority to remit the penalties for goods subsequently imported contrary to the non-importation acts. The Margaretta and Cargo, 2 Gall., 515.

$ 220.

— cannot remit part.- Under the act of February 27, 1813, the secretary of the treasury has no authority to make a remission of part only of the property forfeited. If he remit at all, he is bound to remit in toto. Ibid.

$221.

before libel filed-Collector must restore.- A remission of a forfeiture by the secretary of the treasury, under the act of March 3, 1797, chapter 13, granted before a libel or information has been filed, operates directly to revest the right of property and possession in the petitioner, and the collector on his presenting the warrant of remission is bound to restore it. The Palo Alto,* Dav., 343; 6 N. Y. Leg. Obs., 262.

§ 222. But after the filing of a libel or information, the property is in the custody of the law, and the collector is the keeper of the court. The remittitur being filed in court is a bar to further proceedings to enforce the forfeiture, and the court will direct the suit to be dismissed and issue a precept to restore the property. But the property being in the custody of the court, the collector cannot restore the possession without an order of the court. Ibid. $223. Interest of collectors, informers and others, how affected by. Neither under the act of 1797, nor the act of 1813, has the secretary of the treasury any authority to remit the collector's share of the forfeited property, nor any part of it eo nomine. The Margaretta and Cargo, 2 Gall., 515.

§ 224. The secretary of the treasury has power, under the act for the mitigation and remission of forfeitures, to remit as well the moiety or share allowed to individuals as the part belonging to the government. United States v. Morris,* 1 Paine, 209.

§ 225. A decree of condemnation or judgment in a suit for a forfeiture has not the effect so to vest or consummate the rights of individuals as to secure them against the exercise of the power of remission possessed by the secretary of the treasury. Ibid.

§ 226. There is no analogy between the power of the secretary to remit forfeitures and the power of the king to pardon in England, or the pardoning power of the president in this country. The principle upon which is founded the rule, that a pardon will not be allowed to interfere with or defeat a private interest which had attached on the commission of the act which was pardoned, can have no application to the case of a forfeiture remitted by the secretary of the treasury, as the same authority, an act of congress, which gives the right to a part of the forfeiture also declares how it shall be asserted and in what way it may be defeated. The right of an individual to a part of the forfeiture is contingent in its very inception. Ibid. $227. at what stage of proceedings may be exercised. The act of April 3, 1797, authorizes the secretary to remit the interest of officers in forfeitures in certain cases after suit brought and before judgment. United States v. Lancaster,* 4 Wash., 64.

§ 228. No limit is prescribed in any of the acts of congress to the secretary's power to remit forfeitures, as to the time when it shall be exercised, other than that it must be during the prosecution. A prosecution is not at an end so long as an execution be necessary to produce the fruits of it. Hence, the secretary may certainly remit a forfeiture at any time before execution. United States v. Morris,* 1 Paine, 209.

§ 229. Where a seizure has been made, it seems that the power of the secretary to remit the forfeiture does not cease until the penalty has been collected and distributed. Ibid.

§ 230. The secretary of the treasury has authority, under the remission act of March 3, 1797, to remit a forfeiture or penalty accruing under the revenue laws, at any time, before or after a final sentence of condemnation or judgment for the penalty, until the money is actually paid over to the collector for distribution; and such remission extends to the shares of the forfeiture or penalty to which the officers of the customs are entitled, as well as to the interest of the United States. United States v. Morris, 10 Wheat., 246.

§ 231. Under section 5294, Revised Statutes United States, the power of the secretary of the treasury to remit or mitigate penalties extends as well and as fully to penalties given to the person suing for the same as to those given to the United States, or one-half to the government and one-half to the informer, and is exercisable as well after as before suit brought, if the claim of the informer has not been actually determined by the court, as this power of remission given to the secretary by congress is not a power to pardon, but is simply a restriction, limitation or condition annexed to the grant of the penalty. Pollock v. Steamboat Laura, 5 Fed. R., 133.

§ 232. After a final decree of condemnation unappealed from, in a cause of seizure by a collector for a breach of the revenue laws, the secretary of the treasury has no authority to remit the collector's share of the forfeiture. It is a vested and absolute right. The Brig Hollen and Cargo, 1 Mason, 431.

§ 233. Until final judgment no part of a forfeiture vests absolutely in the collector; but after a final judgment, his share vests absolutely and cannot be remitted. The Margaretta and Cargo, 2 Gall., 515.

§ 234. Conditional remission.- If the remission of a forfeiture by the secretary of the treasury under the act of March 3, 1797, be on the payment of costs, this is a condition precedent, and the remission is inoperative until the costs are paid. The Palo Alto,* Dav., 343.

§ 235. Where the secretary has remitted a forfeiture on the payment of costs, a tender of the costs, after a reasonable time allowed for taxing them, is equivalent to actual payment to

revest the right of property and possession. A neglect of the collector, reasonably to furnish the attorney with the costs of seizure and custody, will not defeat or suspend the right of the claimant to the possession of the property. Ibid.

§ 236. The ship Good Friends, and her cargo of British merchandise, owned by Stephen Girard, a citizen of the United States, was seized by the collector of the Delaware district on April 19, 1812, for a violation of the non-intercourse laws of the United States, then in force. The ship and cargo were condemned as forfeited in the district and circuit court of the Delaware district. On July 29, 1813, congress passed an "act for the relief of the owners of the Good Friends," etc., and a remission of the forfeiture was granted by the secretary of the treasury under the authority of that act, with the exception of a sum equal to double the duties imposed by an act of congress, passed July 1, 1812. The collector was entitled to one moiety of the whole amount reserved by the secretary of the treasury as the condition of the remission. McLane v. United States, 6 Pet., 404.

$237. May be revoked, when.-The secretary has the power, after a remittitur has been granted and communicated to the claimant, to revoke the warrant, and if the remission of the forfeiture be free and unconditional, the power of revocation continues after the remittitur is filed and an order of restoration passed, and until the precept is finally executed by a delivery of the property into the possession of the claimant. The Palo Alto,* Dav., 343. § 238. when remission is conditional.- If the remission of a forfeiture by the secretary of the treasury be conditional, he has no power to revoke it after the condition has been performed, whether the possession of the goods has been delivered to the claimant or not. Ibid.

§ 239. After the remission of a forfeiture by the secretary of the treasury has been made known to the claimant, a revocation of the remission by the former is inoperative until the knowledge of it is brought home to the claimant; and in case the remission be conditional, if the condition be performed before he has notice of the revocation, the rights of the claimant become fixed, and the remission is irrevocable. Ibid.

§ 240. Order of restoration may be demanded by claimant.- The order of restoration, made by the court pursuant to a remission of a forfeiture by the secretary of the treasury, is not properly a judicial but a ministerial act. It is the remission of the secretary that restores the right of property and possession, and the order of the court, carrying that into effect, may be demanded by the claimant ex debito justitiæ. Ibid. § 241. A motion made under section 1020 of the Revised Statutes, to remit the penalty of a forfeited recognizance, on the ground that the party bound to appear was, when called, in the custody of a state officer, under a warrant issued out of a state court on a criminal charge, was denied on the ground that the question could be best determined on the trial of the action which had been brought upon the forfeited recognizance. United States v. Stricker, 12 Blatch., 389.

§ 242. By state. The state of Maryland in 1836 passed a law directing a subscription of $3,000,000 to be made to the capital stock of the Baltimore & Ohio Railroad Company with the following proviso: “That if the said company shall not locate the said road in the manner provided for in this act, then, and in that case, they shall forfeit $1,000,000 to the state of Maryland for the use of Washington county." In March, 1841, the state passed another act, repealing so much of the prior act as made it the duty of the company to construct the road by the route therein prescribed, remitting and releasing the penalty and directing the discontinuance of any suit brought to recover the same. The proviso was a measure of state policy, which it had a right to change, if the policy was afterwards discovered to be erroneous, and neither the commissioners nor the county nor any one of its citizens acquired any separate or private interest under it which could be maintained in a court of justice. It was a penalty inflicted upon the company as a punishment for disobeying the law, and the assent of the company to it as a supplemental charter is not sufficient to deprive it of the character of a penalty. Maryland v. Baltimore & Ohio R. Co., 3 How., 534.

PENDING ACTION.

See NOTICE; PRACTICE.

PENITENTIARY.

See CRIMES.

§ 1. The right to give pensions and bounties is implied from the power to raise and support armies. United States v. Fairchilds, 1 Abb., 74; 1 Am. L. T., 58.

§ 2. This power to give pensions authorizes congress to guard by appropriate penalties the pensions and bounties awarded to soldiers against pension agents or others who would divert them from the beneficiary. Hence, sections 12 and 13 of the pension act of July 4, 1864 (13 Stat. at Large, 389), providing for the punishment of any attorney or agent demanding or receiving a greater compensation than that prescribed, etc., are valid and constitutional. Ibid. §3. Offenses under the law-Power of congress.- It is competent for congress to pass laws securing to pensioners the enjoyment of their pensions, and to protect the fund both before and after it reaches their hands, and to this end may declare the embezzlement by a guardian of money which came to his hands as pension money for his wards to be a crime against the United States, and as such punishable in the United States courts. United States v. Hall, 8 Otto, 343.

§ 4. The last clause of the thirteenth section of the pension act of July 4, 1864 (13 Stat. at Large), providing for the punishment of any attorney or agent wrongfully withholding from a pensioner or other claimant the whole or any part of the pension or claim allowed and due such pensioner or claimant, etc., is not limited in its operation to pensions granted under that act, but extends to pensions granted under an act subsequently passed. United States v. Chaffee, 4 Ben., 330. In an indictment for presenting for payment a false and fraudulent claim for pension moneys, it is not sufficient to allege the offense in the words of the statute. The facts constituting the offense should be set out with such certainty as to apprise the defendant of what is intended to be proved against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. United States v. Goggin, 1 Fed. R., 49; 9 Biss., 269.

§ 5. The provisions of the act of congress for the punishment of frauds on the government (act of March 3, 1823; 3 Stat. at Large, 771) will support an indictment for the transmission of false affidavits and declarations to the pension office, in support of applications for bounty land warrants. United States v. Bickford, 4 Blatch., 337; 12 Law Rep. (N. S.), 273.

§ 6. Upon the trial it is not necessary to prove a transmission by the hand of the prisoner. Assistance in procuring the papers for transmission by another is sufficient. Ibid.

§ 7. Congress, having the right to grant pensions and bounties for the support of meritorious soldiers and sailors, may by all suitable laws guard the fund thus devoted from being diverted from its object by either the craft or the extortion of unscrupulous agents. The two powers are co-extensive in congress. Hence the act of July 4, 1864 (13 Stat. at Large, 387), prescribing the fees of pension agents and providing penalties for receiving greater fees than those prescribed, is constitutional. United States v. Marks,* 2 Abb., 531. See CONSTI

TUTION AND LAWS, $$ 482-95.

§ 8. Section 13 of the pension act of July 4, 1864, provides "that any agent or attorney who shall, directly or indirectly, demand or receive any greater compensation for his services under this act than is prescribed in the preceding section of this act,” etc., shall be subject to a certain penalty. The provision herein contained as to a penalty can only be applied in case of services rendered in procuring pensions granted under this act, and has no application whatever to the procuration of pensions under the act of 1862, although the provisions as to penalties, in the latter act were expressly repealed by the act of 1864. Ibid.

§ 9. Widows of soldiers of the Revolution.- A widow of a soldier of the Revolutionary war married subsequent to 1800. She received a pension under the act of February 3, 1853 (10 Stat. at L., 154), commencing, under a decision of the secretary of the interior, on the 3d day of February, 1853. Claiming that the pension should have commenced on the 4th of March, 1848, in accordance with the provisions of the act of that date (9 Stat. at L., 265), granting pensious to widows of soldiers of the Revolution married prior to 1800, she brought suit for her pension from the 4th day of March, 1848, to the 3d day of February, 1853. Held, that the act of 1853 referred to the act of 1848, and adopted its provisions as to the rate, duration and commencement of the pensions it grants, and for that reason the pension should commence

in 1848 instead of 1853, and that she was entitled to recover.

Ct. Cl., 218; Clark v. United States,* 1 Ct. Cl., 179.

Alexander v. United States,* 4

§ 10. The widow of a soldier of the Revolution, having remarried since his death, is entitled under the act of August 23, 1842, to the pension given by the act of July 7, 1838, as well during the period of her second coverture as during her widowhood, occasioned by the death of her second husband, provided that she be a widow at the time she makes the application. Poucher v. United States,* 1 Ct. Cl., 207.

§ 11. The act of June 4, 1832, granting Revolutionary pensions, provides that when a female pensioner shall die, leaving children, the amount due at the time of her death shall be paid to her representatives for the benefit of her children; and "that on the death of any pensioner, male or female, leaving children, the amount due may be paid to any one, or each of them, as they may prefer, without the intervention of an administrator." Held, that the word children in these provisions embraces the grandchildren of a deceased pensioner, whether their parents died before or after his decease. (DANIEL, CURTIS and CAMPBELL, JJ., dissented.) Walton v. Cotton,* 19 How., 355.

§ 12. Under the act of February 23, 1853, granting pensions to widows of Revolutionary soldiers, who were married subsequently to January, A. D. 1800,"in the same manner as those who were married before that date," the widows therein designated take the pension provided from the date of the passage of the act, and not, as the widows married prior to 1800, from 1848, the date of the act granting pensions to the latter. The phrase "in the same manner" refers to the mode in which the pension must be obtained by the adjudication of the commissioner of pensions, and to the rules, regulations and prescriptions provided by law for the government of the commissioner and pension agents, and for the payment of pensions. United States v. Alexander,* 12 Wall., 177.

§ 13. Widows.- Where a pension is provided for a widow for the services of her husband as an officer in the navy of the United States, by a special act of congress, and a general act, passed the same day, provides a pension for widows of officers who have died in the naval service, such widow, having elected to take under the general law, and having taken under the same, although under protest, by receiving the same did not prejudice her claim under the resolution of the same date, and cannot take under the special act. Decatur v. Paulding, 14 Pet., 497.

§ 14. A claim for a Revolutionary land warrant must be presented to the secretary of the interior, and not to the court of claims. Chamberlain v. United States,* 17 Ct. Cl., 631.

§ 15. A deserter from the army who was re-instated, without trial, upon condition of serving out the time lost by such desertion, and having done so was honorably discharged, is entitled to bounty notwithstanding the desertion. United States v. Kelley,* 15 Wall., 34.

§ 16. Soldiers' Home.- The statutes relating to the Soldiers' Home (R. S. U. S., § 4814, 4819) recognize two classes of beneficiaries: 1st, soldiers who while in service contributed voluntarily or involuntarily to its support; 2d, soldiers who did not contribute. Those who contributed have a right of membership without surrendering their pensions to the institution; those who did not contribute may become members by surrendering their pensions. Bowen v. United States,* 14 Ct. Cl., 162.

§ 17. Section 4820, Revised Statutes of United States, provides that "the fact that one to whom a pension has been granted for wounds or disability received in the military service has not contributed to the funds of the Soldiers' Home, shall not preclude him from admission thereto. But all such pensioners shall surrender their pensions to the Soldiers' Home during the time they remain there and voluntarily receive its benefits." The meaning of this section is clear and obvious, viz., that only those invalid pensioners who have not contributed to the funds of the "Home" are bound to surrender to it their pensions while enjoying its benefit. Such being the case, the courts cannot look, for an interpretation, back of the Revised Statutes to the statutes which have been revised and embodied therein. United States v. Bowen,* 10 Otto, 508.

18. The commissioner of pensions is not the head of a department within the meaning of the second section of article 2 of the constitution of the United States, which prescribes by whom officers of the United States shall be appointed. United States v. Germaine, 9 Otto, 508.

$19. The construction given to statutes relating to pensions by the commissioner of pensions is entitled to great consideration by the courts of the United States in interpreting such statutes. Bowen v. United States,* 14 Ct. Cl., 162.

§ 20. The certificate of the commissioner of pensions is prima facie evidence of title to a pension and of all the facts that make the title. Alexander v. United States,* 4 Ct. Cl., 218.

§ 21. Half pay under act of 1780.— A claim for the half pay granted by the resolution of congress of October, 1780, is barred by not being presented at the treasury by the 27th of March, 1794, according to section 1 of the act of March 27, 1792 (1 Stat., 245). It is also 417

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