MR. JUSTICE HARLAN delivered the opinion of the court.
The statutes regulating the transportation of passengers by steam vessels on such of the waters of the United States as are common highways of commerce, or are open to general or competitive navigation — other than public vessels of this country, vessels of other countries, and canal-boats propelled in whole or in part by steam — provide that every certificate of inspection granted to steamers carrying passengers, other than ferry-boats, shall show the number of passengers of each class for whom the steamer has accommodation, and whom it can carry with prudence and safety; that it shall not be lawful to
The libel in this case was filed by the appellant to enforce a lien, in his favor, upon a steam vessel of the class to which the above regulations apply, for penalties amounting to the sum of $5,661; which, it is claimed, accrued to the appellant, as the person suing for them by reason of the transportation, on that vessel, at certain specified times, of a larger number of passengers than its certificate of inspection permitted.
Before the trial in the District Court, the owner of the vessel, a corporation which had intervened, filed an amended answer, setting up in bar of the further prosecution of the suit, a warrant in due form by the Secretary of the Treasury, remitting to the appellee, "all the right, claim, and demand of the United States, and of all others whatsoever, to said forfeiture of passage money and penalties, on payment of costs, if any there be."
The provision of the statute under which this warrant of remission was issued is in these words:
"The Secretary of the Treasury may, upon application therefor, remit or mitigate any fine or penalty provided for in laws relating to steam vessels, or discontinue any prosecution to recover penalties denounced in such laws, excepting the penalty of imprisonment, or of removal from office, upon such
The costs having been taxed and paid into court, the libel was, by order of the court, dismissed. Pollock v. Steamboat Laura, 5 Fed. Rep. 133. Upon appeal to the Circuit Court, the decree was affirmed, that court concurring with the District Court in holding that the remission by the Secretary of the Treasury discharged all liability for the penalties. The Laura, 19 Blatchford, 562.
The warrant of remission, it is contended by the libellant, is without legal effect, and should have been disregarded, because the statute upon which it rests is in conflict with the clause of the Constitution investing the President with power "to grant reprieves and pardons for all offences against the United States, except in cases of impeachment." The argument advanced in support of this position, briefly stated, is: That the power of the President to grant pardons includes the power to remit fines, penalties, and forfeitures imposed for the commission of offences against, or for the violation of the laws of, the United States; that such power is in its nature exclusive; and that its exercise, in whatever form, by any subordinate officer of the government, is an encroachment upon the constitutional prerogatives of the President.
It is not necessary to question the soundness of some of these propositions. It may be conceded that, except in cases of impeachment and where fines are imposed by a co-ordinate department of the government for contempt of its authority, the President, under the general, unqualified grant of power to pardon offences against the United States, may remit fines, penalties, and forfeitures of every description arising under the
By an act passed March 3, 1797, 1 Stat. 506, the Secretary of the Treasury was authorized to mitigate or remit any fine, penalty, forfeiture or disability arising from any law providing for the laying, levying or collecting duties or taxes, or any law concerning the registering and recording of ships or vessels, or the enrolling or licensing ships or vessels employed in the coasting trade or fisheries, or regulating the same, if, in his opinion, the same was incurred without wilful negligence, or fraudulent intention by the person or persons subject to the same. He was also authorized to direct a prosecution instituted for the recovery thereof to cease and be discontinued upon such terms and conditions as he deemed reasonable and just. This act expired by limitation at a designated time. But by an act passed February 11, 1800, it was revived to continue in force without limitation as to time. 2 Stat. 7, ch. 6. From the adoption of the Constitution to the present moment, Congress has asserted its right, by statute, to invest the Secretary of the Treasury and other officers of the executive branch of the government with power to remit fines, penalties, and forfeitures imposed for the violation of the laws the of United
In that case — which involved the right to a share in a forfeiture declared by statute — the question related to the power of the Secretary under that act, after final sentence of condemnation and judgment for the forfeiture accruing under the revenue laws, to remit the forfeiture. The court held that the power could be exercised, under that act, at any time before the money was actually paid over to the collector for distribution. It was said: "The authority of the Secretary to remit, at any time before condemnation of the property seized, is not denied on the part of the plaintiff [the officer claiming the forfeiture]; and it cannot be maintained that Congress has not the power to vest in this officer authority to remit after condemnation; and the only inquiry would seem to be, whether this has been done by the act referred to." Evidently the court and the eminent counsel who appeared in that case, accepted it as a proposition not open to discussion, that the power of the President to pardon for offences did not preclude Congress from giving the Secretary of the Treasury authority to remit penalties and
It is, however, insisted that if the statute in question is constitutional, it cannot be construed as giving the Secretary of the Treasury the power to remit a penalty after a suit for its recovery has been instituted by a private person. In support of this position we are referred to numerous authorities, which, it is claimed, hold that the test of what may be done under the power of pardon granted by our Constitution is, what the King of England could do, by virtue of his pardoning power, at the time of the separation from that country; and that he could not grant a pardon to the injury of a subject, and, therefore, could not remit a penalty after suit by a private person to recover it. It is quite true, as declared in United States v. Wilson, 7 Pet. 150, 160, that, since the power to pardon "had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours
The decree below is