To Richard Harison
April 26th. 1791.
A question arises concerning the extent of the power to pardon. There is a general rule that a power to pardon cannot be exercised so as to divest Individuals of a right of action for their sole benefit, or of a vested right which they have in conjunction with the sovereign; as where there is a penalty part to the use of the Public and part to the use of an informer. The inquiry consequently is how far the penalties within the 26 Section are liable to the distribution contemplated by the 68 section of the same Act3 and what difference the mode of proceeding by Indictment instead of a popular action4 may make.
I wish your opinion after deliberate investigation on the points which arise out of the general question here made so as to exhibit principles which may guide in other cases as well as in this. I wish also your opinion whether the case of Dodge would be within the relief of the law concerning the Remission and Mitigation of Penalties.5
If it should appear that the Presidents pardon may remit a part and not the whole of the penalties incurred by Dodge, it will remain to inquire whether the pardon ought to be general leaving the Court to make the exception of what it cannot opererate upon or special remitting only so much as concerns the Public. What process of execution would be proper to enforce part of a penalty?
Another case has occured, concerning which, I also wish your opinion. It is whether the officers of the Customs are intitled under the 68th Section to a share of the penalty prescribed by the 65th for false swearing.6 Distinctions on this point have been taken. If you should be of opinion, that the Officers of the Customs are intitled to nothing, it will be satisfactory to me to be informed of the ground of that opinion, or in other words, of the principle by which exceptions to the generality of the expression of the 68 section are to be governed.
With great consideration I have the honor to be, Sir Your Obedt servant.
Richard Harison Esqr.
LS, New-York Historical Society, New York City.
2. “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]). Although H refers to Section 26, it was Section 27 that he had in mind. The confusion arises from an error in the printing of the Session Laws. In the Session Laws Section 24 is incorrectly numbered 23. As a result all succeeding sections are misnumbered. Thus, in the Session Laws the final section of this statute is incorrectly numbered 74, while in all subsequent editions it is 75. Section 27 forbade unloading vessels in darkness without special permission of the collector and unloading at any time without a collector’s permit. The penalty for such activity was a fine of four hundred dollars and ineligibility for Federal office for seven years (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 163).
3. Section 69 rather than 68 is concerned with the distribution of the monies obtained from the sales (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 177). See note 2.
4. An action for a statutory penalty or forfeiture given to a person who desires to claim the penalty or forfeiture.
5. “An Act to provide for mitigating or remitting the forfeitures and penalties accruing under the revenue laws, in certain cases therein mentioned” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 122–23 [May 26, 1790]).
6. These are references to Section 69 and Section 66 of the Collection Law. Section 66 provided that in cases where an oath was required of the captain of a ship or the owner or his agent “if the person so swearing shall swear falsely, such person shall, on indictment and conviction thereof, be punished by fine or imprisonment, or both, in the discretion of the court before whom the conviction shall be had, so as the fine shall not exceed one thousand dollars, and the term of imprisonment shall not exceed twelve months” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 175–76). Section 69 provided “That all penalties, fines and forfeitures, recovered by virtue of this act, (and not otherwise appropriated) shall, after deducting all proper costs and charges, be disposed of as follows: One moiety shall be for the use of the United States, and paid into the treasury thereof; the other moiety shall be divided into equal parts, and paid to the collector and naval officer of the district, and surveyor of the port wherein the same shall have been incurred, or to such of the said officers as there may be in the said district; and in districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer …” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 177).