Smith Thompson

“ It has been said, that no good reason can be assigned why congress should have made any discrimination between penalties and forfeitures, affixed by statute to offences, and discretionary fines imposed by the court, in cases at common law. It is not perceived by the court that any good reason does exist for such discrimination ”

“ The marshal of this district is put on the same footing, with respect to his duties and powers, as other marshals of the United States. They are considered as mere ministerial officers, to execute process when put into their hands, and not made the judges whether such process shall be issued. And it would require the most clear and explicit provision to clothe them with such power, so much out of the ordinary and appropriate powers and duties of the office. But to give the marshal authority to demand an execution in all cases, is incompatible with the powers given to the district attorney. ”

“ This is language appropriate to the prosecution of a suit or action for some fixed and definite penalty; but is inapplicable to mere discretionary fines, which may be imposed by the court or not, at its pleasure. ”