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where it appeared necessary and proper to enforce a part of the penalty or forfeiture. The statute grants, in that respect, two distinct powers; that of prescribing the terms and conditions on which prosecutions shall be discontinued, which of course embraces the payment of costs and other incidents of
prosecu. tion, and that of mitigating, or remitting only in part, the penalty, which last authority would be nugatory, and would not therefore have been given, had the law intended to confine the effect of that authority to the costs or other similar incidents of prosecution, these being embraced by another part of the enacting clause. In deciding on those cases to which the power of remitting in whole or in part does apply, and in graduating the amount of penalty enforced, in those where it appeared improper to grant an unqualified remission, the treasury has been invariably governed by three principles : 1st, Enforcing the laws; 2dly, Reducing the penalty to that amount, and requiring only that portion, which appeared sufficient for the purpose of preventing infractions ; 3dly, Uniform rules of decision, so far as the diversity of cases rendered them practicable. In the application of those principles to individual cases, several circumstances have naturally been taken into consideration, such as the degree of negligence manifested by the party; the importance, for the safety of the revenue, of the particular provision, which had been infringed; the encouragement due to the vigilance of the officers ; and, when necessary for the purpose of checking illegal importations, the profit derived from the transaction. The gain of the treasury never had any
influence on any decision, nor has ever been thought of. The portion of a mitigated penalty sometimes happens to be paid into the treasury, because the law had made one half payable there, if not mitigated. The decisions of the treasury never can add any thing to the amount actually forfeited and otherwise legally payable ; and whenever a mitigation takes place, it operates as a deduction from such payment.
The whole number of decisions since the present secretary of the treasury has filled that office, viz. from the 14th of May, 1801, to the 14th December, 1812, amounts to 1297. In 92 of these cases, there being, in the opinion of the treasury, intent of fraud or (statute) wilful negligence, no remission could be granted. Of the 1265 other cases, to which the power mitting in whole or in part applied, there have been 888, in which an absolute remission has been granted, generally on payment of costs; and 317 have been mitigated. In about twothirds of these, nothing more has been inflicted than the payment of sums, generally inconsiderable, to the use of the custom
house officers. Of the residue, there are 27, consisting of three embargo cases and of 24 cases of illegal importations, princi. pally from Amelia island, or in vessels at sea when war was declared, in which the decision has been; that from the net proceeds of sales, the costs, and (in the cases of importation) the duties in force when the decisions took place, should be deducted; that the residue, if not exceeding the prime cost, freight, insurance, and other charges, should be paid to the claimants; and that the surplus, if any, should be distributed in the same manner as the whole forfeiture, if enforced, would have been. In one of those cases 150 dollars have been paid into the treasury. It is ascertained, that in many of them there is no surplus; and the same result is anticipated in most others. In 67 other cases hereafter stated, in answer to the last quere
of the committee, the whole amount paid into the treasury falls short of four thousand dollars. There may be eight or ten more cases of mitigations, in which some payments have been or may be made into the treasury, and which, not being sufficiently designated in the register of decisions, could not be ascertained without a critical examination of all the original papers. The amount of penalties and forfeitures actually paid into the treasury, and which is hereafter stated, arises almost exclusively from cases of fraudulent infractions of the laws, on which no remission whatever could take place, and in most of which no application has of course been made to the treasury.
5. In cases where a fine is mitigated, it is always done by fixing a sum of money less than the fine. When a forfeiture is mitigated, it is more consistent with the spirit of the law, that the reduced payment which is required should still be in proportion to the value of the whole forfeiture incurred. This principle has been adopted in those cases designated, as having been mitigated by requiring the payment of a per centage. All those which have been ascertained amount to sixty-seven, as already stated, and consist of two classes.
1. The first partial non-importation act took effect on first day of July, 1808. The following rules were adopted, with respect to subsequent importations, not fraudulent and susceptible of remission or mitigation. An absolute remission was granted on all importations in vessels which had sailed from a British port prior to the 1st of June, 1808, on the ground that there was a possibility of their arrival prior to the time when the law took effect. The forfeiture was mitigated in the subsequent cases, and no greater portion required than what appeared absolutely necessary to prevent continual infractions. For . that purpose, the forfeiture was reduced to the payment of a sum
equal to double the amount of the legal duties, to be divided as the forfeiture itself, if enforced, would have been. But that sum was levied only on the articles actually prohibited, and not on those otherwise admissible and belonging to the same owners, though they were also forfeited by the law. There were 37 cases of this description, It has been ascertained that the sum paid in the treasury on 30 of them amounts to $ 1647 44 cents. The sum paid on the seven other cases is blended in the collectors' accounts with the ordinary duties, but, from the value of the merchandise, is estimated to have been less than nine hundred and sixty dollars. The forfeitures remitted by those same decisions are believed to have exceeded half a million of dollars in value.
2. The importation of spirits, porter, and refined sugar, is prohibited in vessels or casks of a size less than is prescribed by law. In the first decisions made on those cases, the condition of the remission was, that the articles imported contrary to law should be re-exported, without giving any other option to the owners. The only exception, whilst that rule prevailed, is Gillespie's case, where the spirits had been sold by order of court prior to the application for a remission being made. The condition of paying one fourth part of the proceeds was substituted to that of re-exportation, which had become impracticable. The share of the United States, contrary to what was intended, did not in that case cover the legal duties. It being from experience ascertained that the condition of an absolute re-exportation was sometimes impracticable, and in most cases more severe than was required for the purpose of preventing infractions of the law, an alteration was added to that condition, by leaving it optional with the claimants, if they did not re-export, to pay a certain sum, which, after some variations, was fixed at the rate of five cents per gallon of spirits, for the use of the United States, in addition to the legal duties. But in all the cases, two only excepted, where the omissions arose from inadvertence in filling the decisions, the condition of the re-exportation has always been preserved, and the payment aforesaid imposed only in case of not complying with that condition. The cases of this description in which any money may have been paid in the treasury amount to thirty. The actual payments, being blended with the accounts of duties, cannot be ascertained. But the amount of spirits, porter, and sugar, embraced by those cases have been ascertained from the applications for remission; and it appears, that if no part has been re-exported, and if in every instance the parties have preferred to pay the sum to which the forfeiture was reduced, the whole amount paid in the treasury cannot have exceeded $1,400, and may therefore have been less.
The fines, penalties, and forfeitures paid by the collectors in the treasury from the 1st of January, 1794, to the 31st of December, 1811, amount to 253,508 dollars and 5 cents. The expenses of prosecution in those cases, as paid by the marshals, cannot be discriminated from the general expences paid generally for jurors, witnesses, and all other expences incident to the prosecutions of every species of offences against the United States, including the safe keeping of prisoners. The aggregate of all these, amounts, for the same period, to 857,206 dollars and 69 cents. There can be no doubt that the portion expended in prosecuting for the offences against the revenue and restrictive laws, under which the above mentioned fines, penalties, and forfeitures have been incurred and paid, considerably exceeds the amount actually recovered and paid in the treasury; and that those penalties have never been a source of revenue, nor been sufficient to defray the expences of prosecution ; for which object they are exclusively appropriated by law.
V 18. On the 8th of February, the senate and house of representatives, by a joint resolution, appointed three members from each house as a committee to ascertain and report a mode of examining the votes for president and vice-president of the United States, and of notifying the persons elected of their election, who next day reported the following resolution, which was agreed to by both houses.
Resolved, That the two houses shall assemble in the chamber of the house of representatives on Wednesday next, at 12 o'clock. That two persons be appointed tellers on the part of the house, to make a list of all the votes as they shall be declared. That the result shall be delivered to the president of the senate, who shall announce the state of the votes and the
persons elected, to the two houses assembled as aforesaid, which shall be deemed a declaration of the persons elected president and vice-president, and, together with a list of the votes, be entered on the journals of the two houses.
Accordingly, on Wednesday, February 10th, at the hour of twelve, the senate entered the hall of representatives, preceded by their president, secretary, sergeant at arms, and door-keeper, and proceeded to seats prepared for them, the members of the house having risen to receive them, and remaining standing until all had entered. The president of the senate took a seat which had been prepared for him at the speaker's right hand, and the secretary of the senate was placed beside the clerk of the house. The tellers, Mr. Franklin of the senate, and Messrs.
Macon and Tallmadge of the house, were seated at a table in front of the speaker's chair.
The president of the senate then proceeded to open and hand to the tellers the sealed returns from each state, which were read aloud by one of the tellers, and noted down and announced by the secretaries of each house.
The votes having all been opened and read, the following result was announced from the chair by the president of the se
68 The president of the senate then declared James Madison to be elected president of the United States for four years ensuing the 4th day of March next, and Elbridge Gerry vice-president of the United States for a like term of years.
The senate then departed from the house in the order and manner they had entered.
On the Saturday following, a committee of two from the senate, and three from the house of representatives, were appointed to wait on the president, and inform him of his re-election.
19. The following messages from the president were laid before congress in the course of the session, in addition to those already mentioned.
20. 1. A message transmitting a letter from Mr. Lear, the consul general at Algiers, stating the circumstances preceding and attending his departure from that regency.
From this document it appears, that on the 17th of July, 1812, a ship arrived at Algiers which had been despatched by the government of the United States with a cargo of naval and military stores for the regency, in fulfilment of treaty stipulations. That on an invoice of the articles being laid before the dey, he became very outrageous on finding that the whole of the stores that he had ordered had not been sent, and declared that he would not receive the cargo, and that the consul must depart in the ship, as none should remain in his regency who did not cause every thing to be brought exactly as he ordered.
In vain did the consul urge the punctuality of the United States in her payments, and the almost impracticability of her furnishing such large supplies at one time, in the present distracted state of the world; the dey insisted upon having every thing brought which he ordered, without regarding whether it amounted to more than the sum stipulated in the treaty or not ;