Revenue-Marine Service-suspension of officer Right of way over government land at West Point 288 519 River frontage at mouth of Grand River, Ohio.... 486 89 Sewer across White Lot-disposal of surplus earth... 372 Transportation of mail by the Union Pacific Railroad Company.. 196 OPINIONS OF HON. CHARLES DEVENS, OF MASSACHUSETTS. APPOINTED MARCH 12, 1877. PARDON-RESTITUTION OF FINE. M., having been convicted in a federal court of an offense against the United States, was, in April, 1876, sentenced by the court to pay a fine of $1,000. He paid the fine, and subsequently applied for a pardon, which was granted January 27, 1877, at which time the money received in payment of the fine had not been covered into the Treasury. The pardon was a full and unconditional one, but contained no clause of restitution: Held that if the money paid in satisfaction of the fine has not yet been covered into the Treasury, but still remains under the control of the Executive, the same should be restored to M. Where the pardon is full and unqualified, express words of restitution in the pardon are not needed to entitle its recipient to restitution. The right thereto results by the mere effect of such a pardon. DEPARTMENT OF JUSTICE, April 29, 1878. SIR: By a communication from this Department addressed to the Secretary of the Treasury, dated February 13, 1877, written in response to a letter from Mr. Charles F. Conant, Acting Secretary, dated January 30, 1877, relative to an application made by Mr. David H. Mitchell for the refunding of a fine paid by the latter (he having received a pardon from the President for the offense for which the fine was imposed), further action upon that application was advised to be suspended until the opinion of the Supreme Court upon Knote's case, then pending before that court, should be declared, as it was anticipated that the general subject of the effect of a pardon touching the right of its recipient to restoration of property or money forfeited or recovered by way of punishment for the offense pardoned would receive there an authoritative discussion, which would throw light upon the particular question involved in the application. Pardon-Restitution of Fine. The opinion of the Supreme Court in the case above mentioned has recently been delivered, and Mr. Mitchell, by letter dated the 22d instant, directs the attention of the Attorney-General to this fact, and asks that his application be again considered. As this matter, under the submission to the Attorney-General made by the Acting Secretary of the Treasury, on the 30th of January, 1877, does not appear to have been finally disposed of, but seems to be still pending here, I perceive no impropriety in communicating to you my views thereon without a new submission of the matter by your Department. I understand the facts of the case to be these: Mr. Mitchell, having been tried and convicted of an offense against the United States in the district of Kansas, was, in April, 1876, sentenced by that court to pay a fine of $1,000. He paid the fine. Subsequently he applied for a pardon, and on the 27th of January, 1877, the President granted him a "full and unconditional pardon" for the offense, but it contained no clause of restitution. When the pardon was granted, the money received in payment of the fine had not been covered into the Treasury. At the date of the letter of the Acting Secretary, above mentioned, it remained on deposit in the First National Bank of Leavenworth, Kansas, to the credit of the Treasurer of the United States. It is presumed that the money still remains on deposit there, and has not yet been covered into the Treasury. The inquiry arising upon the application of Mr. Mitchell is, whether, by virtue of his pardon, he is entitled to restitution of the money paid by him in satisfaction of the fine. As was anticipated, the Supreme Court in their opinion in Knote's case have discussed the general subject of the effect of a pardon in regard to property or money forfeited or recovered as punishment for the offense. Iextract from that opinion so much as presents the views of the court on that subject: "The pardon," observes the court, "does not affect any rights which have vested in others directly by the execution of the judgment for the offense, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding Pardon-Restitution of Fine. the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the Treasury, the right to them has so far become vested in the United States that they can only be secured to the former owners of the property through an act of Congress. Moneys once in the Treasury can only be withdrawn by an appropriation by law. However large, therefore, may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers: it cannot touch moneys in the Treasury of the United States, except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power. "Where, however, property condemned, or its proceeds, have not thus vested, but remain under control of the Executive, or of officers subject to his orders, or are in the custody of the judicial tribunals, the property will be restored or its proceeds delivered to the original owner upon his full pardon. The property and the proceeds are not considered as so absolutely vesting in third parties or in the United States as to be unaffected by the pardon until they have passed out of the jurisdiction of the officer or tribunal. The proceeds have thus passed when paid over to the individual entitled to them, in the one case, or are covered into the Treasury in the other. "The views here expressed have been applied in practice, it is believed, by the executive departments of the Government. In 1856 the question was submitted by the Secretary of the Treasury to the Attorney-General, whether, under a pardon remitting a forfeiture to the United States, imposed by a judgment of an United States district court, the proceeds of the forfeiture deposited by the marshal in one of the public depositories to the credit of the United States, but not brought into the Treasury by a covering warrant, could be refunded to the marshal, and through him to the party entitled, in execution of the remission granted by the Presi |