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paid over to the Collector for distribution; and such permission extends to the shares of the forfeiture or penalty to which the office of the customs is entitled, as well as to the interest of the United States." giving his opinion in this case, Mr. Justice Johnson, of South Carolina, made use of language much in point. "Mercy and justice," he said, "could only have been administered by halves, if collectors could have hurried causes to judgment, and then clung to the one-half of the forfeiture, in contempt of the cries of distress, or the mandates of the Secretary." (United States v. Morris, 10 Wheaton, 303.)

A case has occurred in Kentucky, to which reference has been already made, in which it is confidently and broadly assumed that the pardoning power (under the Constitution) extends even to the penalties due to informers. The following passage occurs in the opinion of the Court: "The act of 1823 says that any prosecuting attorney, who shall prosecute any person to conviction under it, shall be entitled to twenty-five per cent. of the amount of such fine as shall be collected. The act gives the prosecuting attorney one-fourth of the money when collected, but vests him with no interest in the fine or sentencc, separate and distinct from that of the Commonwealth, that would screen his share from the effect of any legal operation which should, before collection, abrogate the whole or a part of it. It would require language of the strongest and most explicit character to authorize a presumption that the Legislature intended to confer any such right. We could never presume an intention to control the Governor's constitutional power to remit fines and forfeitures. If he can, in this way, be restrained in the

exercise of his power to remit, for the fourth of a fine, so can he be from the half or the whole. This part of his prerogative cannot be curtailed. With the excep tion of the case of treason, his power to remit fines and forfeitures, grant reprieves and pardons, is unlimtied, illimitable and uncontrollable. It has no bounds but his own discretion. It is no doubt politic and proper for the Legislature to incite prosecuting attorneys and informers, by giving them a portion of fines when collected; but in so doing, the citizen cannot be debarred of his right of appeal to Executive clemency." (Routt v. Flemster, 7 J. J. Marshall, 132.)

According to these authorities, it seems reasonable to infer that, under the Constitution of the United States, the pardoning power, which is clearly applicable to the offence of " transporting" slaves of the District, might remit the penalties in question. These penalties, though allotted to the owners and the county, when finally collected, are neither more nor less than the punishment, under sentence of a criminal court for an offence of which the parties stand convicted upon indictment. They can be collected and acquitted only by the United States. No process for this purpose is at the command of the slave owner. He had no control whatever over the prosecution at any stage, nor did it proceed at his suggestion or information. The very statute under which these public proceedings were instituted, in the name of the United States, secured to the slave owner his private action on the case for damages thus separating the public from the private interests. These, it seems the duty of the President to keep separate, except on the final collection and distribution of the penalties. Pub

lic policy and the ends of justice require that the punishment for a criminal offence should, in every case, be exclusively subject to the supreme pardoning power, without dependence upon the will of any private person. An obvious case will illustrate this. Suppose, in the case of Drayton and Sayres, it should be ascertained beyond doubt that the conviction was procured by perjury. If, by virtue of the judgment, the slave owners have an interest in the imprisonment of these men, which cannot be touched, then the prisoners, unable to meet these heavy liabilities, must continue in perpetual imprisonment, or owe their release to the accident of private good-will. The President, notwithstanding his beneficent power to pardon, under the Constitution, will be powerless to remedy this evil. But such a state of things would be monstrous; and any interpretation of the Constitution is monstrous which thus ties his hands. Mercy and justice would be rendered not merely by halves: but, owing to the inability of prisoners, from poverty, to pay the other half of the fine, they would be entirely arrested.

The power of pardon, which is attached by the Constitution to offences generally, should not be curtailed. It is a generous prerogative, and should be exercised generously. Boni judicis est ampliare jurisdictionem. This is an old maxim of the law. But if it be the duty of a good judge to extend his jurisdiction, how much more true is it the duty of a good President to extend the field of his clemency. At least, no small doubt should deter him from the exercise of his prerogative. The conclusion from this review is as follows: 1. By the English common law, the costs and onehalf of the fines may be remitted. It is not certain

that by this law, as adopted in the United States, the other half of the fines may not also be remitted.

2. Under the statutes of Maryland, now the law of the District, the Governor, and, of course, the President, may remit "the whole or any part of any fine," without exception.

3. Under the Constitution of the United States, and according to its true spirit, the pardoning power of the President is co-extensive with the power to punish, except in the solitary case of impeachment.

Several courses are open to the President in the present case.

I. By a general pardon he may discharge Drayton and Sayres from prison, and remit all the fines and costs for which they are detained. Such a pardon would effectually operate unquestionably upon the imprisonment and upon the costs, and also upon the half of the fines due to the county. It would be for the courts, on a proper application, and in the exercise of their just powers, to restrain it, if the pardon did not operate upon the other moiety.

Among the opinions of the Attorney General, is a case which illustrates this point. In 1824, one Joshua Wingold prayed for a credit in the settlement of his accounts, for his proportion of a fine incurred by one P. Varney. It appeared that suit was instituted by the petitioner as Collector of the District of Bath, Maine, on which judgment was obtained in May, 1809; the defendant was arrested and committed to jail, under execution on that judgment, and the fine afterwards remitted by the President. The petitioner contended that the President had no constitutional or legal power to remit his proportion of the fine, the right to which had

been vested by the institution of the suit. On this Mr. Wirt remarks, that it is unnecessary to express an opinion upon the correctness of this position,

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because, if it be correct, the act of remission by the President being wholly inoperative as to that portion of the fine claimed by the collector, his legal right to recover it remained in full force, notwithstanding the remission; and it is his own fault if he has not enforced his right at law." (Opinions of Attorney General, vol. i. p. 479.)

A general pardon cannot conclude the question, so as to divest any existing rights. It can do no wrong. Why should the President hesitate to exercise it?

II. By a limited pardon the President may discharge Drayton and Sayres simply and exclusively from their imprisonment, without touching their pecuniary liability; but leaving them still exposed to proceedings for all fines and costs, to be satisfied out of any property they may hereafter acquire.

If the imprisonment had been a specific part of the sentence, as if they had been sentenced to one year's imprisonment and a fine of one hundred dollars, beyond all question they might be discharged, by pardon, from this imprisonment. But where the imprisonment, as in the present case, is not a specific part of the sentence, but simply an alternative in the nature of a remedy, to secure the payment of the fine, the power of the President cannot be less than in the former case.

So far as all private parties are concerned, the imprisonment is a mere matter of remedy, which can be discharged without divesting the beneficiaries of any rights; and, since imprisonment for debt has been