: dent is called upon to exercise the authority reposed in him by the fourth I have the honor to be, very respectfully, sir, your obedient servant, To the PRESIDENT. ! POWER OF THE EXECUTIVE TO REMIT FORFEITURES. The President is invested with authority to remit judgments of forfeiture pronounced against vessels, their tackle and apparel, for infractions of the act of 1818, prohibiting the slave trade. But if he shall deem it expedient to exercise the pardoning power in the case of the brig Titi, it is recommended that he follow the precedent in the case of Lancaster, and remit only the interest of the United States in the judgment. ATTORNEY GENERAL'S OFFICE, SIR: I have considered, agreeably to your request, the legal questions arising on the application in behalf of the captain and owners for a remission of the forfeiture of the brig Titi, which was condemned in the dis. trict court of the United States at New Orleans, on the 24th of November, 1846, for an alleged infraction of the first section of the slave-trade act of the 20th of April, 1818. The act of the 3d March, 1797, entitled "An act to provide for mitigating or remitting the forfeitures, penalties, and disabilities accruing in certain cases" therein mentioned, (1 Stat. at Large, p. 506,) is limited to cases arising under the revenue laws, and to acts relating to the registering, enrolling, and licensing of vessels. In the case of a vessel condemned for an infraction of the slave-trade acts, the Secretary of the Treasury has no power to remit the forfeiture; neither had the district judge any jurisdiction in the matter of the petition presented to him, and which consti tutes one of the papers in this case. The Secretary of the Treasury had no authority to remit penalties unless in cases provided for by law, nor does the jurisdiction of the district judge extend to any matter not speci fied in the several acts of Congress regulating the same. By the 1st section of the act of 1797, it is enacted "that, whenever any person or persons who shall have incurred any fine, penalty, forfeiture, or disability, or shall have been interested in any vessel, goods, wares, or merchandise, which shall have been subject to any seizure, forfeiture, or disability, by force of any present or future law of the United States, for the laying, levying, or collecting of any duties or taxes, or by force of any present or future act concerning the registering and recording of ships or vessels, or any act concerning the enrolling and licensing ships or vessels employed in the coasting-trade or fisheries, and for regulating the same, shall prefer his petition to the judge of the district court, &c., he shall cause the facts to be annexed to the petition, and direct their transmission to the Secretary of the Treasury, who shall have power to remit such fine, forfeiture, or penalty, and remove such disability, or any part thereof, if in his opinion the same shall have been incurred without wilful negli gence, or any intention of fraud in the person or persons incurring the same, and to direct the prosecution, if any shall have been instituted, for the recovery thereof, to cease, and be discontinued, upon such terms as he may consider reasonable and just." It is proper to remark, that this act is erroneously marked obsolete in the Statutes at Large. It is true that the 4th section provides that it shall continue in force for two years only, and from thence to the end of the next session of Congress. But by the act of February 11, 1800, (2 Statutes at Large, p. 7,) the limitation is repealed, and a provision adopted, that the residue of the act "shall be, and the same is hereby, continued in force, without limitation of time." Besides, it is recognised to be of force by an act amendatory of the same, passed July 14, 1832. (4 Statutes at Large, p. 597.) The Secretary of the Treasury has authority, by that act, to remit fines and forfeitures arising under it at any time before or after final sentence of condemnation or judgment, until the money is actually paid over to the collector for distribution; and the remission extends to the shares of the officers entitled, as well as to the interests of the United States. (United States vs. Morris, 10 Wheat., 246.) But none of those provisions reach the present case. It is clear, therefore, that the Secretary of the Treasury cannot afford any relief. The question, then, arises, Has the President power to pardon or to remit the forfeiture? and if so, to what extent will the pardon operate? The proceedings taken by the district attorney are by way of an information in rem against the vessel for an infraction of the slave trade acts. Judgment of forfeiture was pronounced on the 24th of November, 1846, against the brig, her tackle and appurtenances. It does not appear, however, whether the vessel has been sold and the proceeds deposited in the registry of the court, nor, indeed, whether anything has been done to carry out the decree of forfeiture. The information alleges the case against the vessel in form as follows: "For that, heretofore, to wit, on the 31st of July, 1846, a certain negro boy, named Antonio, aged about five years, and a slave, and also a certain griffe woman, named Maria Regla, aged about thirty years, and a slave, were both brought in the said brig Titi from a foreign port or place, to wit, from Havana, in the island of Cuba, into the United States, to wit, into the port of New Orleans, there both of them to be holden, sold, or disposed of as slaves, or to be, both of them, held to service or labor, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States." This information is based on the Ist section of the act of 1818, which enacts: "That, from and after the passage of this act, it shall not be lawful to import or bring, in any manner whatsoever, into the United States, or territories thereof, from any foreign kingdom, place, or country, any negro, mulatto, or person of color, with intent to hold, sell, or dispose of any such negro, mulatto, or person of color, as a slave, or to be held to service or labor; and any ship, vessel, or other water-craft employed in any importation as aforesaid, shall be liable to seizure, prosecution, and forfeiture in any district in which it may be found-one-half thereof to the use of the United States, and the other half to the use of him or them who shall prosecute the same to effect." The only question of importance which remains to be considered is, Has the President the power to grant a pardon? and if so, what will be its effects? The authority of the President is defined in the second section of the second article of the constitution, in these words: "And he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." It is true that the process in this case was an information in rem against the vessel, which in many cases is regarded as a civil proceeding; but in essence it was in this case a prosecution for a criminal offence. The accusation is based upon an infraction of the slave-trade acts, and the form of the allegations contains all the characteristics of a criminal charge. A participation in the slavetrade is made highly penal by numerous provisions of law. I think, there. fore, that this was an offence against the United States, falling within the scope of the President's pardoning power. This view of the subject is strongly supported by the reasoning of the court in the case of the United States vs. Lancaster, (4 Washington, C. C. R., 66.) In that case, Mr. Justice Washington fully recognises the power of the President to pardon a forfeiture for a violation of the embargo laws. although in that case, as in revenue cases, the right to remit was expressly conferred upon the Secretary of the Treasury by statute.-(2 Stat. at Large, 454.) The ele mentary writers who have treated of this provision of the constitution have regarded it as a general and unqualified power, reaching from the highest to the lowest offence, and as including within its scope the authority to remit fines, penalties, and forfeitures, which may, in the last resort, be exercised by the President, even where it is also confided to the Secretary of the Treasury by special enactment. It is well said by Judge Story, that no law can abridge the constitutional power of the executive department, or interrupt its right to interfere by pardon in these cases.(3 Story, 353.) These views are sustained in all their substance by Chancellor Kent, and Rawle on the Constitution, in terms equally broad and explicit.-(1 Kent, 284; Raw/e, 164.) But what can the President remit? Can his pardon reach the officer's share? It has already appeared by the case in 10 Wheaton, that the power of the Secretary of the Treasury which is conferred by statute extends to the share of the officer as well as of the government, and terminates only when the money is paid to the collector for distribution. It should. how. ever, be borne in mind that this view is sustained by the court on the construction of the act giving the Secretary power to remit. It does not follow that a pardon, under the President's constitutional power, would have the same effect to defeat the vested right of the officer making the seizure. Judge Washington, in the case of the United States vs. Lancaster, is of opinion that the pardon of the President could not have that effect; that its influence extends only to a remission of all the interests of the United States, and accordingly held that the pardon in that case, which purported to remit all the right and interest of the United States, did not touch the officer's share. The remark of the judge in that case is undoubtedly correct, that according to the doctrine of the common law of England, the King cannot, in the exercise of his prerogative of pardon, defeat a legal interest or benefit vested in a subject. The authorities cited by him appear to sustain the position.-(6 Bacon, 145; 3 Inst., 240, 241; 1 Chitty, 742, 764.) If that rule prevails in England, it would seem that it should be adopted in this country, if we follow the authority of Chief Justice Marshall, in the case of United States vs. Wilson, 7 Peters, 160, wherein he says: "As this power had been exercised from time immemo rial by the Executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look. into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it." In view of all the circumstances, if the President should deem it expedient to exercise the power which is undoubtedly vested in him by the constitution, I recommend him to follow the precedent in the case of Lancaster, and remit "all the interest of the United States." I deem it proper to call the President's attention to the fact that there is no formal petition among the papers, nor any certified copy of the judgment of forfeiture. I have the honor to be, very respectfully, sir, your obedient servant, To the PRESIDENT. NATHAN CLIFFORD. TERM AND COMPENSATION OF NEW CHEROKEE COMMISSIONERS. The appropriation act of June 27, 1846, provided that the commissioners to examine claims under the treaty with the Cherokees should continue in office for one year from the date of their appointment, and no longer. The moneys appropriated by the act of March 3, 1847, to pay the expenses of the commission, are applicable as well to the payment of the salaries as the incidental expenses of the board. ATTORNEY GENERAL'S OFFICE, May 13, 1847. SIR: I have had the honor to receive your communication of the 27th of March last, requesting my opinion upon the following questions: 1. Whether the commissioners appointed to examine claims under the treaty with the Cherokees of 1835-'36 may be continued in office beyond the period of one year from the term of their appointment? 2. Whether any portion of the sums appropriated by the act of March 3, 1847, can be applied to the compensation or payment of the comunis. sioners and their secretary? or whether it is applicable alone to the pay. ment of incidental expenses? It is provided by the seventeenth article of the treaty of 1835-36, as amended by the Senate, "that all the claims arising under, or provided for in the several articles of this treaty, shall be examined and adjudicated by such commissioners as shall be appointed by the President of the United States for that purpose," &c. The appropriation act of June 27, 1846, contains the following pro. vision: "For compensation to two commissioners to examine claims under the treaty with the Cherokees of eighteen hundred and thirty-five. six, and pay of secretary, and for contingent expenses, the sum of seven thousand dollars." If the commissioners here provided for shall, upon any case before them, differ in opinion, "it shall be their duty to call upon the Attorney General to settle the difference between them: Provided, That the commission hereby selected shall continue for one year, and no longer." The language of the appropriation act defining the tenure of the office of the commissioners is too explicit to leave anything for construction. They were appointed for one year, and no longer; and they cannot continue in office under their present commission beyond that time. If it were in the power of Congress to enlarge the tenure of their office, without a new appointment, there is nothing in the eighth section of the act of March 3, 1847, to warrant any such construction. My attention has been drawn to the language of the act wherein it is declared "that the sum of six thousand dollars is appropriated to defray the expenses of the commission now sitting under the treaty between the United States and the Cherokee Indians," and to the fact that the money is placed at the discretion of the President. It is difficult to perceive in what particular that language is necessarily inconsistent with the proviso of the previous act. A repeal by implication can only be sustained when the subsequent law is repugnant to the former. It may turn out that some portion of this appropriation is needed to defray the expenses of the present year; and if so, the President will be called upon to exercise his discretion to determine what amount shall be thus applied. In every view of the subject, therefore, I am clearly of opinion that the present commissioners go out of office at the end of one year from the day of their appointment. In answer to the second question, I am of opinion that the appropria. tion is not confined to the contingent expenses of the commission, but may be applied, if necessary, to the payment of the services of the com missioners and secretary. The first act appropriated a certain sum for compensation to two com. missioners, and pay of secretary, and for contingent expenses. The word "contingent" is dropped in the act of 1847; and the language is, "that the sum of six thousand dollars be, and the same is hereby, appropriated out of any money in the treasury not otherwise appropriated, and placed at the discretion of the President, to defray the expenses of the commission now sitting under the treaty," &c. The words are general-" to pay the expenses of the commission"and must be understood to include the salaries of the board as well as the incidental expenses. I have the honor to be, very respectfully, sir, your obedient servant, NATHAN CLIFFORD. To the PRESIDENT. CLAIMS FOR IMPROVEMENTS UNDER TREATY WITH THE CHEROKEES. Reservees under the treaty with the Cherokees who disposed of their land, are not entitled to compensation for improvements thereon, as they passed with the soil. The compensation provided by 4th clause of the 6th article, and the 1st clause of the 7th article of the treaty, cannot be awarded to reservees, but only to emigrants. Nor can compensation be awarded to those who were not in possession of improvements at the date of the treaty. The claim of Andrew Taylor, and of others similar to his, should be rejected. ATTORNEY GENERAL'S OFFICE, May 18, 1847. In the case of Andrew Taylor for the value of an improvement. This is a claim for the value of an improvement upon which the commissioners appointed to examine claims under the treaty of 1835-'6 with the Cherokees have differed in opinion; and it being provided by an act passed at the first session of the 29th Congress, entitled "An act making appropria. tions for the current and contigent expenses of the Indian department, and for fulfilling treaty stipulations with the various Indian tribes, for the |