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son held to service, or shall be found to assist, by advice, donation, or loan, or otherwise, the transporting of any slave, or any person held to service, from this State, or by any other unlawful means depriving a master or owner of the service of his slave, or person held to service, for every such offence the party aggrieved shall recover damages in an action on the case against such offender or offenders; and such offender or offenders also shall be liable, upon indictment, and conviction upon verdict, confession, or otherwise, in this State, in any county court where such offence shall happen, (to] be fined a sum not exceeding two hundred dollars, at the discretion of the court, one half to the use of the master or owner of such slave, the other half to the county school, in case there be any; if no such school, to the use of the county."
Under this statute, proceedings were instituted by the Attorney of the District of Columbia against these parties, in seventy-four different indictments, each indictment being founded on the alleged "transporting” of a single slave. On conviction, Drayton was sentenced on each indictment to a fine of $ 140 and costs, in each case $19.49, amounting in the sum-total to $11,802.26. On conviction, Sayres was sentenced on each indictment to a fine of $ 100 and costs, in each case $ 17.38, amounting in the sum-total to $ 8,686.12. One half of the fine was, according to law, to the use of the masters or owners of the slaves transported; the other half, to the county school, - or, in case there were no such school, to the use of the county. Afterwards, on motion of the Attorney for the District, they were “prayed in commitment," and committed until the fine and costs should be paid. In pursuance of this sentence, and on this motion, they have been detained in prison, in the City of Washington, since April, 1848, and are still in prison, unable from poverty to pay these large fines. The question now occurs as to the power of the President to pardon them, so at least as to relieve them from imprisonment.
The peculiar embarrassment in this case arises from the nature of the sentence. If it were simply a sentence of imprisonment, the power of the President would be unquestionable. So, also, if it were a sentence of imprisonment, with fine superadded, payable to the United States, his power would be unquestionable; and the same power would extend to the case of a fine payable to the United States, with imprisonment as the alternative on non-payment of the fine.
But in the present case imprisonment is the alternative for non-payment of fines which are not payable to the United States, but to other parties, namely, the slave-owners and the county. It is important, however, to bear in mind that these fines are a mere donation to these parties, and not a compensation for services rendered. These parties are not informers, nor were the proceedings in the nature of a qui tam action.
It should be distinctly understood, at the outset, that the proceedings against Drayton and Sayres were not at the suit of any informer or private individual, but at the prosecution of the United States by indictment. They are therefore removed from the authority of the English cases, which protect the share of an informer after judgment from remission by pardon from the crown.
The power of the President in the present case may be regarded, first, in the light of the Common Law,
secondly, under the statutes of Maryland, -and, thirdly, under the Constitution of the United States.
First. As to the Common Law, it may be doubtful, whether, according to early authorities, the pardoning power can be used so as to bar or divest any legal interest, benefit, or advantage vested in a private individual. It is broadly stated by English writers that it cannot be so used. (2 Hawkins, P. C., 392, Book II., chap. 37, sec. 34; 17 Viner's Abridgment, 39, Prerogative of the King, U. art. 7.) But this principle does not seem to be sustained by practical cases in the United States, except in the instances of informers and qui tam actions, while, on one occasion, in a leading case of Kentucky, it was rejected. (Routt v. Feemster, 7 J. J. Marshall, 132.)
But it is clearly established, that, where the fine is allotted to a public body, or a public officer, for a public purpose, it may be remitted by pardon. This may be illustrated by several cases.
1. As where, in Pennsylvania, the fine was for the benefit of the county. In this case the Court said : “ Until the money is collected and paid into the treasury, the constitutional right of the Governor to pardon the offender, and remit the fine or forfeiture, remains in full force. They can have no more vested interest in the money than the Commonwealth, under the same circumstances, would have had; and it cannot be doubted, that, until the money reaches the treasury, the Governor has the power to remit. .... In the case of costs, private persons are interested in them; but as to fines and forfeitures, they are imposed upon principles of public policy. The latter, therefore, are under the exclusive control of the Governor." (Commonwealth v. Denniston, 9 Watts, 142.) The same point is also illustrated by a case in Illinois. (Holliday v. The People, 5 Gilman, 214-217.)
2. As where, in Georgia, the fine was to be paid to an inferior court for county purposes. (In Re Flournoy, Attorney-General, 1 Kelly, 606 - 610.)
3. As where, in South Carolina, the fine was to be paid to the Commissioners of Public Buildings, for public purposes, (The State v. Simpson, 1 Bailey, 378, or the Commissioners of the Roads. (The State v. Williams, 1 Nott & McCord, 26. See also Rowe v. The State, 2 Bay, 565.)
According to these authorities, the portion of the fine allotted to the county, or to the school, may be remitted. Of this there can be no doubt.
Secondly. The Statutes of Maryland, anterior to the organization of the District of Columbia, may also be regarded as an independent source of light on this question, since these statutes are made the law of the District. And here the conclusion seems to be easy.
By the Constitution of Maryland, adopted November 8th, 1776, it is declared : "The Governor may grant reprieves or pardons for any crime, except in such cases where the law shall otherwise direct." Notwithstanding these strong words of grant, which seem to be as broad as the Common Law, it was further, as if to remove all doubt, declared by the Legislature, in 1782 (Chap. 42, sec. 3): “That the Governor, with the advice of the Council, be authorized to remit the whole or any part of any fine, penalty, or forfeiture, heretofore imposed, or hereafter to be imposed, in any court of law." Here is no exception or limitation of any kind. By express words, the Governor is authorized to remit the whole or any part of any fine. Of course, under this clause he cannot remit a private debt; but he may remit any fine. The question is not, whether the fine be payable to the United States or other parties, but whether it is a fine. If it be a fine, it is in the power of the Governor.
This view is strengthened by the circumstance, that in Maryland, according to several statutes, fines are allotted to parties other than the Government. The very statute of 1796, under which these proceedings were had, was passed subsequently to this provision respecting the remission of fines. It must be interpreted in harmony with the earlier statute; and since all these statutes are now the law of the District of Columbia, the power of the President, under these laws, to remit these fines, seems established without special reference to the Common Law or to the Constitution of the United States.
If this were not the case, two different hardships would ensue: first, the statute of 1782 would be despoiled of its natural efficacy; and, secondly, the minor offence of “transporting” a single slave would be punishable, on non-payment of the fine, with imprisonment for life, while the higher offence of "stealing" a slave is punishable with imprisonment for a specific term, and the other offence of “enticing” a slave is punishable with a fine larger than that for transporting a slave, and, on non-payment thereof, imprisonment for one year only.
Thirdly. Look at the case under the Corrstitution of the United States.
By the Constitution, the President has power “to grant reprieves and pardons for offences against the