the case of The United States v. Morris, 10 Wheat. 246; which though it relates immediately to a forfeiture, is doubtless equally applicable to pecuniary fines and penalties. The question in this case was whether by a judgment or decree of condemnation against property seized for a violation of the non-intercourse laws of the United States, the rights of the officers of the customs to a moiety of the value of such property had become absolute and fixed, so as no longer to be subject to the power of revision by the Secretary of the Treasury. After a very able argument at the bar, and an elaborate and luminous examination of the question by the court, it was decided that the power of remission continued until the actual receipt of the money arising from the forfeiture by the collector, for distribution.

'It will be perceived, however, that this decision, in fixing the limits beyond which the power of remission can no longer be exerted, applies in terms only to the shares of the officers of the customs, and not to the interest of the United States. The question may therefore perhaps still be considered as open for discussion, whether so far as this interest is concerned, the Secretary of the Treasury may not remit at a still later stage of the transaction.

'It will doubtless occur to the student that the rule established by this case authorizes a remission after, as well as before a sale by the marshal of the petitioner's property, provided the proceeds have not been paid over for distribution to the collector. It is presumed however, that the supreme court did not contemplate any interference with the title acquired by the purchaser at such sale; but intended, in case of such subsequent remission, not that the property of the petitioner should be restored, but that the proceeds of it, or such portion thereof as might be remitted, should be paid over to him.

'In cases highly favorable to the petitioner and in which there should be danger that the period of grace would elapse before a decision by the Secretary of the treasury could be obtained, probably the district judges would consider it their duty to grant an order for a temporary stay of proceedings in the suit against the property or person of the petitioner.

'Of the petition and notice thereof.] Although the application for relief is to the Secretary of the Treasury, the petition, is, by the terms of the act, to be presented, and may with propriety be, as in practice it usually is, addressed to the judge by whom the summary inquiry is to be made. It must truly and particularly set forth the circumstances of the petitioner's case: that is, it

must state truly and with precision how this liability was incurred, and the circumstances upon which he relies for relief; — as his ignorance or misapprehension of the requirements of the law, mistake, accident, misconduct of agents, or the like, and that he had been guilty of no "wilful negligence, or any intention of fraud." It does not require all the formal precision usually observed in a bill of equity but it is very analogous in its nature to such a bill for relief (for example,) against a judgment at law; and should be framed accordingly. The Secretary of the Treasury being authorized to direct any prosecution which may be pending to ❝cease and be discontinued upon such terms and conditions as he may deem reasonable and just," it is essential that the petitioner should state whether any and what legal proceedings have been had in the case: and it is accordingly expressly required, by a rule of each of the district courts in New-York, that he should do so. Rule 62, D. C. S. D. and Appendix, Rule 96, D. C. N. D. N. Y.

'It is not required by the act nor by the rules of either of these courts, that the petition should be verified by the oath of the petitioner.

'It is however usual in practice to append to it an affidavit of its truth; and when this is done, care should be taken as in all other cases, that the affidavit be made either before the judge, or one of the commissioners appointed to take affidavits and acknowledgements of bail, in the district in which the petition is preferred.

'The act requires the judge, before proceeding to the summary inquiry into the circumstances of the case, to cause "reasonable notice to be given to the person or persons claiming the fine, penalty or forfeiture, and to the attorney of the United States for such district." This language would rather seem to imply the previous presentation of the petition, and an order thereupon in each case, that such notice as may be deemed reasonable be given. This however, is but matter of form; and according to a rule in each of the district courts in New-York, the petitioner may give notice in the first instance of his intention to present the petition, and then the necessary inquiry takes place at the time of its presentation. This is merely doing by general rule, what it would otherwise be necessary to do by special order in each particular In the Southern District, this notice must be served four days, and in the Northern District ten days before presenting the petition. As it regards the form of the notice, these rules require the service of " a copy of the petition, with a notice of the time and place of presenting the same." Rule 61, D. C. S. D. and Appendix, Rule 95, D. C. N. D. N. Y.

case.

'The service must in all cases be made upon the District Attorney; but in order to ascertain upon what other persons it must also be made, it is necessary to refer to the 91st section of the Act of March 2, 1799, "to regulate the collection of duties on imports and tonnage," (vol. 3, p. 136,) prescribing the manner in which fines, penalties, and forfeitures are to be distributed. It is true this direction in terms applies only to such penalties and forfeitures as may be incurred under that particular act; and that there are other acts of the description enumerated in the remission act, by which penalties and forfeitures are also inflicted: but in every instance as far as I have observed, the provisions of this act relative to the enforcement and distribution of such penalties and forfeitures are referred to and expressly adopted.

'But before adverting to the provisions in question of the 91st section of the collection act, it will conduce to perspicuity in relation to this whole subject, to notice some of the provisions of the two next preceding sections.

"The 89th section among other things,' directs that all penalties accruing by any breach of the said act, shall be sued for and recovered with costs of suit, in the name of the United States of America. It makes it the duty of the collector within whose district any seizure is made or forfeiture incurred, to cause suits for the same to be commenced without delay, and prosecuted to effect; authorizes him to receive, from the court, or from the proper officer thereof, the sum or sums so recovered, after deducting all proper charges, to be allowed by the said court, and directs him on receipt thereof, to pay and distribute the same without delay according to law.

'The 90th section directs all vessels and goods condemned in virtue of the said act, (and for which bond shall not have been given,) to be sold by the marshal after fifteen days notice, and directs the marshal within ten days after such sale to pay over the amount of such sales, (deducting all proper charges allowed by the court,) to the clerk or other proper officer of the court, to be by him paid to the collector of the district.

'Then comes the 91st section directing the mode of distribution as follows: "That all fines, penalties and forfeitures, recovered by virtue of this act, (and not otherwise appropriated,) shall, after deducting all proper costs and charges, be disposed of as follows:

'This and the next succeeding section direct the mode of proceeding against goods seized, and are particularly worthy the attention of the student. 3 By district it will of course be understood, is meant collection district.

one moiety shall be for the use of the United States, and be paid into the treasury thereof, by the collector receiving the same; the other moiety shall be divided between, and paid in equal proportions to, the collector and naval officer of the district, and surveyor of the port, wherein the same shall have been incurred, to such of the said officers as there may be in the said districts; and in districts where one only of the said officers shall have been established, the said moiety shall be given to such officer: Provided nevertheless, that in all cases where such penalties, fines and forfeitures, shall be recovered in pursuance of information given to such collector, by any person other than the naval officer or surveyor of the district, the one half of such moiety shall be given to such informer; and the remainder thereof shall be disposed of between the collector, naval officer and surveyor or surveyors in manner aforesaid: Provided also, That where any fines, forfeitures and penalties, incurred by virtue of this act, are recovered in consequence of any information given by any officer of a revenue cutter, they shall, after deducting all proper costs and charges, be disposed of as follows: one fourth part shall be for the use of the United States, and paid into the treasury thereof in manner as before directed; one fourth part for the officers of the customs to be distributed as herein before set forth; and the remainder thereof to the officers of such cutter, to be divided among them agreeably to their pay."

" 1

'It follows, therefore, that notice is, in every case to be given to the collector; and according to the strict letter of the law, when the fine, penalty or forfeiture has been incurred in a collection district in which there is a surveyor or naval officer, or both, notice ought to be given to him or them also.

'It is understood, however, that it has not heretofore been the practice of the judge for the Southern District of New York, in

The residue of this section is as follows: "And provided likewise, that whenever a seizure, condemnation and sale of goods, wares or merchandise, shall take place within the United States, and the value thereof shall be less than two hundred and fifty dollars, that part of the forfeiture which accrues to the United States, or so much thereof as may be necessary, shall be applied to the payment of the costs of the prosecution: And be it further provided, That if any officer or other person, entitled to a part or share of any of the fines, penalties or forfeitures, incurred in virtue of this act, shall be necessary as a witness on the trial for such fine, penalty or forfeiture, such officer or other person may be a witness upon the said trial; but in such case he shall not receive, nor be entitled to, any part or share of the said fine, penalty or forfeiture; and the part or share to which he otherwise would have been entitled, shall revert to the United States."

cases of forfeitures or penalties incurred in the collection district of the city of New York, in which there are both a surveyor and a naval officer, to require the service of notice upon these latter officers, but only on the collector. Perhaps as the collector is made by law the immediate agent in the collection, receipt and distribution, of the monies arising from penalties and forfeitures, and is himself always entitled to a distributive share, it has been considered a sufficient compliance with the spirit of the act to cause him alone to be notified, as the representative as well of the interests of his associates, as of his own. According to the terms of the printed rule of that court, one copy of the petition and notice, are to be served on the District Attorney, "and another copy and notice on the persons claiming the fine," &c. Rule 61. It is clear also, that when the fine, penalty or forfeiture is recovered in pursuance of information given by an informer or an officer of a revenue cutter, as mentioned in the section last cited, a literal interpretation of the remission act, would require such informer or officer to be notified. The name of the informer or officer should in such cases, (when known,) be stated in the petition. In many cases however, in which information had thus been given, the petitioner might be wholly ignorant of the fact. It is proper therefore, when a seizure has been made, or a suit for a penalty commenced, that he should state in his petition, if the fact is so, that he has no knowledge or good reason to believe that such seizure was made or suit instituted in pursuance of information given to the collector by any person entitled as informer to a share of such penalty or forfeiture.

'The due service of the notice must, of course, be proved by affidavit made before the judge or a commissioner.

'But by far the most difficult and embarrassing part of the proceeding remains to be considered. The judge is required "to inquire, in a summary manner into the circumstances of the case;" and to "cause the facts which shall appear upon such inquiry to be stated and annexed to the petition, and direct their transmission to the secretary of the treasury." It is the duty of the judge, therefore, to decide from the evidence adduced, what are the facts of the case; and from the facts thus ascertained, the secretary is to form his opinion, whether the petitioner is guilty of "wilful negligence or any intention of fraud." But with respect to the nature of the evidence to be adduced, and the mode by which it is to be obtained, the act is wholly silent. Generally, a judicial inquiry implies a resort to what in law is considered competent and credible testimony as the only means of ascertaining