From Richard Harison
New York 24th. May 1791
Having attentively considered the Questions contained in your letter of the 26th. Ultimo, I am fully of opinion that the power to pardon which the Constitution has vested in the President of the United States cannot extend to affect the rights of Individuals. The principles of the Common Law of England upon this Subject appear to be founded in good sense and I think must govern where-ever they will apply. Nor do I think that a difference in the mere mode of proceeding can affect principles that are connected with substantial Justice. Altho’ therefore the prosecution may be by indictment, or by suit in the name of the United States only, yet if a part of the fine or penalty is expressly given to any Individual, his right is to be respected, and I think cannot be disposed of without his own consent or a legislative provision.
I take it that by the 68th. Section of the last Collection Act,1 the Officers of the Customs, & informer, where there is any, are entitled to a moiety of all fines inflicted by virtue of that act and not otherwise appropriated. I do not at present see any Ground of distinction upon this Subject, whether the prosecution is by indictment or otherwise. The words are general including all fines not otherwise appropriated; and tho’ the word recover may be improper, when applied to this subject, yet it must receive a reasonable construction in furtherance of the intention of the act, which was to encourage vigilance in the officers by admitting them to participate in the emoluments derived from it.
I am sensible that exceptions might arise to the generality of the expressions used in the Act from the nature of the offence for which the fine is inflicted or forfeiture incurred; and perhaps some of the offences specified in the 65th: section2 may be of this nature, where committed by a superior officer of the Customs, as it would be absurd that the party offending should be entitled to a share of the penalty which is the punishment of his offence.
I am very doubtful whether in the Case of Mr. Dodge,3 any relief can be given under the act for remission of penalties4 as besides the forfeiture a disability is incurred which the Secretary of the Treasury has no power to remit. At any rate the remission would not operate against this disability which would make it necessary to have recourse to the President.
The Question then naturally recurs, how is the constitutional power of pardoning to be exercis’d, so as not to interfere with the principles of Justice? Here the Laws of England can afford us no great light because I do not remember an instance where the prosecution is in the name of the Sovereign only, and yet a part of the penalty or fine given to individuals. I should suppose however that the pardon would be considered as a mere nullity, with respect to a moiety of the fine, and I do not see why execution might not go for the residue stating that part was satisfied or remitted. Neither do I see any objection to making the pardon conditional, “provided the offender satisfy the officers &c. for the one half of the fine or penalty & pay the expences of prosecution.” A Practice somewhat analogous to this, has prevailed in England, where the Court frequently enquire whether the prosecutor is satisfied before they proceed to determine what fine shall be imposed upon the delinquent.
I am sensible that upon these subjects there must be great room for variety of opinion. The Questions depend upon the peculiar frame of Laws which in many instances have been drawn without attention to technical precision. Indeed, I am by no means assured that my own ideas are correct, with relation to these new & untried points. They, however, are the result of the best investigation which it has been in my power to make.
With the highest respect I remain, Sir. Your most obedt. & most humble. servt.
Hon. A. Hamilton Esqr.
Secry of the Treasy.
LS, RG 59, Miscellaneous Letters, 1790–1799, National Archives; ADf, New-York Historical Society, New York City.
1. Actually Harison is referring to Section 69 (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 177) rather than Section 68 of “An Act to provide more effectually for the collection of the duties imposed by law on goods, wares and merchandise imported into the United States, and on the tonnage of ships or vessels” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 145–78 [August 4, 1790]). For an explanation of the difference in the numbers of this act’s sections, see H to Harison, April 26, 1791, note 2.