OPINION SUBMITTED TO THE PRESIDENT, MAY 14, 1852, ON THE
APPLICATION FOR THE PARDON OF DRAYTON AND SAYRES, INCARCERATED AT
WASHINGTON FOR HELPING THE ESCAPE OF SLAVES.
This case, from beginning to end, is a curious episode of Antislavery
history. The people of Washington were surprised, on the morning of
April 16, 1848, at hearing that the "Pearl," a schooner from the North,
had sailed down the Potomac with seventy-six slaves, who had hurried
aboard in the vain hope of obtaining their freedom. The schooner was
pursued and brought back to Washington with her human cargo, and
the liberators, Drayton, master, and Sayres, mate. As the latter were
taken from the river-side to the jail, they were followed by a proslavery
mob, estimated at from four to six thousand people, many armed with
deadly weapons, amid wrathful cries of, "Hang him!" "Lynch him!"
with all profanities and abominations of speech, and exposed to violence
of all kinds,--the thrust of a dirk-knife coming within an inch of
Drayton. The same mob besieged the jail, and, hearing that Hon. Joshua
E. Giddings, the brave Representative of Ohio, was there in consultation
with the prisoners, demanded his immediate expulsion, and the jailer,
to save bloodshed, insisted upon his departure. Nor was the prevailing
rage confined to the jail. It extended to the office of the "National
Era," the Antislavery paper, which was saved from destruction only
through the courage and calmness of its admirable editor. The spirit
of the mob entered both Houses of Congress, and the slave-masters
raged, as was their wont.
Meanwhile Drayton and Sayres were indicted before the Criminal Court
of the District of Columbia for "transporting" slaves. There were no
less than one hundred and fifteen indictments against each of the
prisoners, and the bail demanded of each was seventy-six thousand
dollars. Hon. Horace Mann, a Representative of Massachusetts, appeared
for the defence. His speech on this occasion will be read with constant
interest.[93] The spirit of the mob without entered the court-room,
betraying itself even in the conduct of the judge, while standing
near the devoted counsel for the defence were men who cocked pistols
and drew dirks in the mob that followed the prisoners to the jail. Of
course the verdict was "Guilty," and the sentence was according to the
extreme requirement of a barbarous law.
[93] Slavery: Letters and Speeches by Horace Mann, pp. 84-118.
Drayton and Sayres lingered in prison more than four years, and during
this long incarceration they were the objects of much sympathy at
the North. A petition to Congress in their behalf, signed by leading
Abolitionists, including the eloquent Wendell Phillips, was forwarded
to Mr. Sumner for presentation to the Senate. On careful consideration,
he was satisfied that such a petition, if presented, would excite the
dominant power to insist more strongly than ever on the letter of the
law, and he took the responsibility of withholding it. Meanwhile he
visited the sufferers in prison, and appealed to President Fillmore for
their pardon. In this application he was aided by that humane lady,
Miss Dix. The President interposed doubts of his right to pardon in
such a case, but expressed a desire for light on this point. At his
invitation, Mr. Sumner laid before him the following paper, which was
referred to the Attorney-General, Mr. Crittenden, who gave an opinion
affirming the power of the President,--adding, however, "Whether the
power shall be exercised in this instance is another and very different
question."[94] This opinion bears date August 4, 1852, which, it will
be observed, was some time after the Presidential Conventions of the
two great political parties. Shortly afterwards the pardon was granted.
There was reason to believe that an attempt would be made to arrest
the pardoned persons on warrants from the Governor of Virginia.
Anticipating this peril, Mr. Sumner, as soon as the pardon was signed,
hurried to the jail in a carriage, and, taking them with him, put them
in charge of a friend, who conveyed them that night to Baltimore, a
distance of forty miles, where they arrived in season for the early
morning trains North, and in a few hours were out of danger.
By the laws of Maryland, 1737, chapter 2, section 4, it is provided
that any person "who shall steal any negro or other slave, or who shall
counsel, hire, aid, abet, or command any person or persons" to do so,
"shall suffer death as a felon." The punishment has since been changed
to imprisonment, for a term not less than seven nor more than twenty
years.
[94] Opinions of Attorneys-General, Vol. V. pp. 580-591.
Fourteen years later, by the act of 1751, chapter 14, section 10, it
was provided, that, "if any free person shall entice and persuade any
slave within this province to run away, and who shall actually run
away, from the master, owner, or overseer, and be convicted thereof,
by confession, or verdict of a jury upon an indictment or information,
shall forfeit and pay the full value of such slave to the master or
owner of such slave, to be levied by execution on the goods, chattels,
lands, or tenements of the offender, and, in case of inability to
pay the same, shall suffer one year's imprisonment without bail or
mainprise."
Still later, by the act of 1796, chapter 67, section 19, "the
transporting of any slave or any person held to service" from the State
was made a distinct offence, for which the offender was liable in an
action of damages, and also by indictment.
By the Act of Congress organizing the District of Columbia (February
27, 1801) it was declared, that "the laws of the State of Maryland, as
they now exist, shall be and continue in force in that part of the said
District which was ceded by that State to the United States, and by
them accepted as aforesaid." Under this provision, these ancient laws
of Maryland are to this day of full force in the District of Columbia.
* * * * *
The facts to be considered are few. Messrs. Drayton and Sayres, on
indictment and trial, under the act of 1737, for stealing slaves, were
acquitted, the jury rendering a verdict of "Not guilty." Resort was
then had to the statute of 1796, chapter 67, section 19, as follows.
"And be it enacted, That any person or persons, who shall
hereafter be convicted of giving a pass to any slave, or person
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 _Constitution of the United
States_.
By the Constitution, the President has power "to grant reprieves and
pardons for offences against the United States, except in cases of
impeachment." According to a familiar rule of interpretation, the
single specified exception leaves the power of the President applicable
to all other cases: _Expressio unius exclusio est alterius_. Mr.
Berrien, in one of his opinions as Attorney-General, recognizes "the
pardoning power as coextensive with the power to punish"; and he quotes
with approbation the words of another writer, that "the power is
general and unqualified," and that "the remission of fines, penalties,
and forfeitures, under the revenue laws, is included in it." (Opinions
of the Attorneys-General, Vol. I. p. 756.)
On this power Mr. Justice Story thus remarks: "The power of remission
of fines, penalties, and forfeitures is also included in it, and may,
in the last resort, be exercised by the Executive, although it is in
many cases by our laws confided to the Treasury Department. No law
can abridge the constitutional powers of the Executive Department, or
interrupt its right to interpose by pardon in such cases.--Instances
of the exercise of this power by the President, in remitting fines
and penalties, in cases not within the scope of the laws giving
authority to the Treasury Department, have repeatedly occurred, and
their obligatory force has never been questioned." (Story, Com. on
Constitution, Vol. II. § 1504.)
It has been decided by the Supreme Court, after elaborate argument,
that "the Secretary of the Treasury has authority, under the Remission
Act of the 3d of March, 1797, chap. 361, to remit a forfeiture or
penalty accruing under the revenue laws, at any time, before or after
a final sentence of condemnation or judgment for the penalty, until
the money is actually paid over to the Collector for distribution";
and that "such remission extends to the shares of the forfeiture or
penalty to which the officers of the customs are entitled, as well as
to the interest of the United States." In giving his opinion on this
occasion, Mr. Justice Johnson, of South Carolina, made use of language
much in point. "Mercy and justice," he said, "could only have been
administered by halves, if collectors could have hurried causes to
judgment, and then clung to the one half of the forfeiture, in contempt
of the cries of distress or the mandates of the Secretary." (_United
States_ v. _Morris_, 10 Wheaton, 303.)
A case has occurred in Kentucky, to which reference has been already
made, in which it is confidently and broadly assumed that the
pardoning power under the Constitution extends even to the penalties
due to informers. The following passage occurs in the opinion of
the Court. "The act of 1823 says that any prosecuting attorney, who
shall prosecute any person to conviction under it, shall be entitled
to twenty-five per cent of the amount of such fine as shall be
collected.... The act gives the prosecuting attorney one fourth of the
money, when collected, but vests him with no interest in the fine or
sentence, separate and distinct from that of the Commonwealth, that
would screen his share from the effect of any legal operation which
should, before collection, abrogate the whole or a part of it. It
would require language of the strongest and most explicit character
to authorize a presumption that the Legislature intended to confer
any such right. We could never presume an intention to control the
Governor's constitutional power to remit fines and forfeitures. _If he
can in this way be restrained in the exercise of his power to remit
for the fourth of a fine, so can he be for_ _the half or the whole.
This part of his prerogative cannot be curtailed. With the exception of
the case of treason, his power to remit fines and forfeitures, grant
reprieves and pardons, is unlimited, illimitable, and uncontrollable.
It has no bounds but his own discretion._ It is no doubt politic
and proper for the Legislature to incite prosecuting attorneys and
informers, by giving them a portion of fines, when collected; but in
so doing the citizen cannot be debarred of his right of appeal to
executive clemency." (_Routt_ v. _Feemster_, 7 J.J. Marshall, 132.)
According to these authorities, it seems reasonable to infer, that,
under the Constitution of the United States, the pardoning power,
which is clearly applicable to the offence of "transporting" slaves of
the District, might remit the penalties in question. These penalties,
though allotted to the owners and the county, when finally collected,
are neither more nor less than the punishment, under sentence of a
criminal court, for an offence of which the parties stand convicted
upon indictment. They can be collected and acquitted only by the
United States. No process for this purpose is at the command of the
slave-owner. He had no control whatever over the prosecution at any
stage, nor did it proceed at his suggestion or information. The very
statute under which these public proceedings were instituted in the
name of the United States secured to the slave-owner his private action
on the case for damages,--thus separating the public from the private
interests. These it seems the duty of the President to keep separate,
except on the final collection and distribution of the penalties.
Public policy and the ends of justice require that the punishment
for a criminal offence should, in every case, be exclusively subject
to the supreme pardoning power, without dependence upon the will of
any private person. An obvious case will illustrate this. Suppose,
in the case of Drayton and Sayres, it should be ascertained beyond
doubt that the conviction was procured by perjury. If, by virtue of
the judgment, the slave-owners have an interest in the imprisonment of
these men which cannot be touched, then the prisoners, unable to meet
these heavy liabilities, must continue in perpetual imprisonment, or
owe their release to the accident of private good-will. The President,
notwithstanding his beneficent power to pardon, under the Constitution,
will be powerless to remedy this evil. But such a state of things would
be monstrous; and any interpretation of the Constitution is monstrous
which thus ties his hands. Mercy and justice would be rendered not
merely _by halves_, but, owing to the inability of prisoners, from
poverty, to pay the other half of the fine, they would be entirely
arrested.
The power of pardon, which is attached by the Constitution to offences
generally, should not be curtailed. It is a generous prerogative,
and should be exercised generously. _Boni judicis est ampliare
jurisdictionem._ This is an old maxim of the law. But if it be the duty
of a good judge to extend his jurisdiction, how much more is it the
duty of a good President to extend the field of his clemency! At least,
no small doubt should deter him from the exercise of his prerogative.
* * * * *
The conclusion from this review is as follows.
1. By the English Common Law the costs and one half of the fines may be
remitted. It is not certain that by this law, as adopted in the United
States, the other half of the fines may not also be remitted.
2. Under the statutes of Maryland, now the law of the District, the
Governor, and, of course, the President, may remit "the whole or any
part of any fine," without exception.
3. Under the Constitution of the United States, and according to its
true spirit, the pardoning power of the President is coextensive with
the power to punish, except in the solitary case of impeachment.
* * * * *
Several courses are open to the President in the present case.
I. By a _general pardon_ he may discharge Drayton and Sayres _from
prison, and remit all the fines and costs for which they are detained_.
Such a pardon would unquestionably operate effectually upon the
imprisonment and upon the costs, and also upon the half of the fines
due to the county. It would be for the courts, on a proper application,
and in the exercise of their just powers, to restrict it, if the pardon
did not operate upon the other moiety.
Among the opinions of the Attorney-General is a case which illustrates
this point. In 1824 Joshua Wingate prayed for a credit, in the
settlement of his accounts, for his proportion of a fine incurred
by one Phineas Varney. It appeared that suit was instituted by the
petitioner as Collector of the District of Bath, Maine, on which
judgment was obtained in May, 1809; the defendant was arrested and
committed to jail, under execution on that judgment, and the fine was
afterwards remitted by the President. The petitioner contended that the
President had no constitutional or legal power to remit his proportion
of the fine, the right to which had vested by the institution of the
suit. On this Mr. Wirt remarks, that "it is unnecessary to express
an opinion upon the correctness of this position, because, if it be
correct, the act of remission by the President being wholly inoperative
as to that portion of the fine claimed by the collector, his legal
right to recover it remained in full force, notwithstanding the
remission; and it is his own fault, if he has not enforced his right at
law." (Opinions of the Attorneys-General, Vol. I. p. 479.)
A general pardon cannot conclude the question so as to divest any
existing rights. It can do no wrong. Why should the President hesitate
to exercise it?
II. By a _limited pardon_ the President may discharge Drayton and
Sayres simply and exclusively _from their imprisonment, without
touching their pecuniary liability_, but leaving them still exposed
to proceedings for all fines and costs, to be satisfied out of any
property they may hereafter acquire.
If the imprisonment were a specific part of the sentence,--as, if they
had been sentenced to one year's imprisonment and a fine of one hundred
dollars,--beyond all question they might be discharged, by pardon, from
this imprisonment. But where the imprisonment, as in the present case,
is not a specific part of the sentence, but simply an alternative in
the nature of a remedy, to secure the payment of the fine, the power of
the President cannot be less than in the former case.
So far as all private parties are concerned, the imprisonment is a
mere matter of _remedy_, which can be discharged without divesting
the beneficiaries of any rights; and since imprisonment for debt has
been abolished, it is reasonable, under the circumstances, that this
peculiar remedy should be discharged.
III. By another form of _limited pardon_, the President may discharge
Drayton and Sayres _from their imprisonment, also from all fines and
costs in which the United States have an interest_, without touching
the rights of other parties.
This would set them at liberty, but would leave them exposed to private
proceedings at the instigation of the owners of the "transported"
slaves, if any should be so disposed.
IV. By still another form of pardon, reference may be made to the
Maryland statute of 1782, under which the Governor is authorized
"to remit the whole or any part of any fine," without any exception
therefrom; and this power, now vested in the President, may be made
the express ground for the remission of all fines and costs due from
Drayton and Sayres. By this form of pardon the case may be limited, as
a precedent hereafter, to a very narrow circle of cases. It would not
in any way affect cases arising under the general laws of the Union.
In either of these alternatives the great object of this application
would be gained,--the discharge of these men from prison.