lawfully appointed by the President, in the manner hereinafter directed; transmitting to the President, as soon as may be after such delivery, a descriptive list of such negroes, mulattoes, or persons of color, that he may give directions for the disposal of them." This provision, and those contained in the 2d and 4th sections of that act, already cited, are manifestly inconsistent with the exercise of the power which had been conferred upon the State authorities by the 7th section of the act of 1807. It is, therefore, clear to my mind that the 6th section of the act of 1819 repeals all that part of the 7th section of the act of 1807 which gave this power to the State authorities.

Indeed, this was so ruled in the case of the Josefa Segunda, in 3 Peters, 58, United States vs. Preston, which was a claim for the proceeds of certain negroes brought within the limits of Louisiana, in violation of the slave-trade acts, made under the Louisiana statute of 1818, which directs negroes imported to be sold, and one moiety of the proceeds to be paid to the commanding officer of the capturing vessel, and the other moiety to the treasurer of the Charity Hospital of New Orleans, for the use of the hospital. The case came up three times to the Supreme Court. In the last trial, the court says: "The final condemnation in this court took place on the 13th of March, 1820. But, previous to that time, was passed the act of March 3, 1819, by which a new arrangement is made as to the disposal of persons of color seized and brought in under any of the acts prohibiting the traffic in slaves. By the latter act, they are deliverable to the order of the President, not of the States; and the repealing clause repeals all acts and parts of acts which may be repugnant to this act; so that, if, in the disposal of persons of color brought into the United States, the provisions of this act embrace the case of such persons when brought in under the 7th section of the act of 1807, the power to deliver them to the order of the States was taken away before the final decree of this court. Such, in the opinion of the court, is the effect of the act of 1819." It may, therefore, now be considered as settled law, that the President has power to make such regulations and arrangements as he may deem expedient for the safe-keeping, support, and removal beyond the limits of the United States, of all such negroes, mulattoes, and persons of color, as may be taken on board slavers by the armed vessels of the United States. The authority of the President in this respect has been substituted for that which had been previously given to the States.

It is equally clear that the fourth section of the act of 1819 provided for a disposal of any negro, mulatto, or person of color, imported contrary to the provisions of the slave trade acts, which is altogether inconsistent with the previous regulations contained in the fifth section of the act of 1818; and for the reasons already given, so much of the latter section as contains those regulations must be regarded as repealed. In conclusion, it is my deliberate opinion that in all cases where a compliance is shown with the requirements of the fourth section of the act of 1819, every such negro, mulatto, and person of color so imported as aforesaid, contrary to the provisions of the slave trade acts, when taken into the custo dy of the marshal for safe-keeping, in pursuance of a legal adjudication, is subject to the orders of the President of the United States.

After a careful examination of the papers and records, I am of opinion that such a compliance is fully shown in those cases; and that the Presi

dent is called upon to exercise the authority reposed in him by the fourth section of that act.

I have the honor to be, very respectfully, sir, your obedient servant, NATHAN CLIFFORD.

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,
May 13, 1847.

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 district 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 au 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 1st 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; Rawle, 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. however, 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, NATHAN CLIFFORD.

To the PRESIDENT.

TERM AND COMPENSATION OF NEW CHEROKEE COMMISSIONERS.

The appropriation act of June 27, 1816, 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, 1817, 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 commis 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 1835-236, 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-fivesix, 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