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Effect of Pardon--Remission of Fine.

the second and third points he expressed views similar to those which I have above stated.

I have not answered categorically the questions put in the letter of the Second Comptroller, because, on studying the case, I came to the conclusion that the questions presented by it were the three that I have above answered, and I think that my answers to these dispose of all the points of law presented. The questions, if there be any at issue between the Quartermas ter-General's Office and the accounting-officers of the Treasury, in respect of the power of the latter to change the amount fixed or allowed by the Quartermaster-General's Department in any given case, ought to be presented in a much more explicit form than they are by any papers transmitted in this case, if the opinion of this Department is desired upon them.

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


Solicitor-General and Acting Attorney-General.


Assistant Attorney-General.


Solicitor-General and Acting Attorney-General.


Where a person convicted of a crime against the United States was sentenced to fine and imprisonment, and subsequently received an unconditional pardon from the President, but previous thereto had paid the amount of the fine to the marshal, by whom it was deposited in court, where it still remains: Held that the fine was remitted by the pardon, and that the money should now be restored to the person pardoned. A pardon by the President works a remission of a pecuniary penalty already paid, unless the money has actually passed into the Treasury, (overruling the decision in 10 Opin., 1.)


June 28, 1872.

SIR: District-Attorney Harrington, of the eastern district of Arkansas, asks for instructions as to his course in the

Effect of Pardon--Remission of Fine.

matter of Charles Leoni's fine, and makes the following statement of facts:

Leoni was convicted of passing counterfeit money, and was sentenced to both fine and imprisonment. On the 24th of May last, he received an unconditional pardon from the President. In the mean time the marshal had received the full amount of the fine and costs, and, on the 17th instant, he paid the money into court, where it now remains. The district-attorney has moved that this money be deposited to the credit of the Treasurer of the United States, and Leoni's counsel that it be refunded to him, on the ground that the pardon remitted the fine, and that it is not now too late for such remission to take effect. The action of the court is suspended.

There is an opinion of Attorney-General Stanton (10 Opin., 1) exactly covering this case. Mr. Stanton says, in regard to a similar state of facts, "the money thus paid to the marshal * ought to be accounted for, and paid over, by the marshal, as money belonging to the United States. The President's remission of a penalty after it has been paid is of no effect." But this view of the question does not seem to be sustained by the authorities.

The effect of a pardon is to restore the person pardoned, as far as is possible, to the condition in which he would have been if he had never been convicted. (See United States vs. Wilson, 7 Pet., 150; 1 Bishop Crim. L., § 713; The King vs. Greenvelt, 12 Mod., 119; In re Deming, alias Daniels, 10 Johns., 232; 12 Opin., 81.) Such complete restoration must include a restitution of the fine, unless some insurmountable obstacle intervenes. Is there any such obstacle in a case like this? In the opinion of Attorney-General Cushing, there is not. He says, in his opinion of January 1, 1857, (8 Opin., 281,) speaking of a similar case, that, although the forfeiture be consummated, so far as the guilty party is concerned, and the money has passed into the hands of some Government officer, it may still be refunded by executive warrant, in execution of a pardon, as long as the payment was not in such form as to constitute "complete severance from intermediate official custody and absolute entry into the Treasury." He also says: "If this money had actually'passed into the Treasury, by a covering warrant or otherwise, it could not, in my

Rancho "Guadalupe."

opinion, be refunded without authority of Congress." This only on account of the constitutional provision "that no money shall be drawn from the Treasury but in consequence of appropriations made by law."

In the case of Brown vs. The United States, (1 Woolw. C. C., 198,) it was held that where the proceeds of the sale of confiscated property were still in the hands of the marshal they were restored by a pardon. The court, Miller, J., said: "It is my opinion that, until an order of distribution * is made, or until the proceeds are actually paid into the hands of the party entitled, as informer, to receive them, or into the Treasury, they are within the control of the court; that no vested right to those proceeds has accrued so as to prevent the pardon from restoring them to the petitioner."


On the whole, the law seems to be that a pardon by the President restores pecuniary penalties already paid to an officer of the Government, unless the money has actually passed into the Treasury.

It is my opinion, therefore, that the amount of Charles Leoni's fine and costs must be returned to him as having been remitted by pardon.

Respectfully submitted.

Pardon Clerk.



Approved July 2, 1872:



In this case, (which involves the validity of two patents issued upon a California private land-claim, one in 1866 and the other in 1870-both, however, having been afterward recalled by the Land Department,) upon the facts submitted, held that there was no legal authority for issuing the second patent, and that the first patent should be delivered to the confirmees of the claim.

Rancho Guadalupe."'

The provision in the act of June 14, 1860, chap. 128, that notice of the survey and plat made by the surveyor-general of California be given by advertisement, requires a period of four weeks to elapse between the first insertion and the act to be done (i. e., the removal of the plat, &c., from the surveyor-general's office) which such notice is to precede, the insertions being repeated once a week in each week during the same period.

Advertisement of said notice was made at Santa Barbara, in a newspaper called the "Santa Barbara Gazette," which was printed in San Francisco and thence immediately sent to Santa Barbara for distribution, where it was distributed: Held that Santa Barbara may be regarded as the "place of publication" of the paper, and (as far as that is material) the requirement of the statute complied with.

March 10, 1873.

SIR: I have considered the questions submitted by you in your communication of the 23d of December last, in relation to the California private land-claim, Guadalupe, &c., and have the honor to submit the following reply:

Before beginning that, however, I may say that I have not opened the record, which, at a subsequent period, was transmitted here in order that, if I should "see proper so to do," I might "find the facts for myself." Partly because I did not understand that it was your wish that I should so find the facts, and partly because I understand that some important facts at issue are not contained in the record, but depend upon the weight to be attributed to certain affidavits therewith transmitted, I had no desire to complicate myself with questions of fact belonging to another Department, and am entirely willing to take these at your hands.

I will add that the delay which has occurred in making this reply has arisen from a desire to hear all that might be said in behalf of the claimants-a desire which I understand to be fully shared by yourself.

The questions concern the comparative validity of two patents under the same land-claim, one issued in 1866 and the other in 1870.

The former patent was issued, as was supposed, under the provisions of the act of June 14, 1860.

Those provisions, so far as they are material here, required that the surveyor-general of California should cause to be

Rancho Guadalupe."

made a survey, and a plat thereof, and thereupon give notice
of the same, &c., by publication, "once a week for four weeks,
in two newspapers, one published at Los Angeles, and one
of which the place of publication is nearest the land,
and until the expiration of such time the survey and plat
shall be retained in his office, subject to inspection."

Advertisement was made in a paper at Los Angeles, and also in the "Santa Barbara Gazette." The first insertion in the former paper was on the 23d of February, 1861, and the last on the 16th of March, 1861; in the latter, the like insertions were of February 14 and of March 7, 1861. Besides this, the latter paper "was printed in the city of San Francisco, and, as soon as printed, sent to Santa Barbara for distribution, and distributed there;" and no other paper was published there.

The patentee refused to receive the patent of 1866, and upon his remonstrances and suggestions that patent was recalled, and another survey ordered, the proceedings under which ended in issuing the patent of 1870; which, after it had been signed and sealed, and had been sent to the surveyor for delivery, was, without the consent of the patentee, recalled by the Commissioner of the General Land-Office.

The proceedings ending in the patent of 1866 were ex parte. No one objected to their progress. The means of resistance or of correction, provided in the act of 1860, were not resorted to.

The first notice which the United States had of objection by the claimant was his refusal to receive the patent; and it is probable that (as is alleged) the first actual notice which such claimant had of these proceedings was the tender of that patent. His reason for refusing it was, that it did not cover a large part of the tract claimed.

It seems to me that, if the proceedings terminating in the patent of 1866 were regular, there is no way short of an act of Congress of relieving the claimant from the injury which these proceedings may have caused.

The steps in those proceedings are, (1) a survey and plat made and returned to the office of the surveyor-general; (2) an advertisement for a certain time in certain papers; (3) the retention of the survey and plat in the above office dur

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