this: "IIe shall have power to grant reprieves and pardons, but his pardon shall not be pleadable in bar of an impeachment."'39 While this report was being considered by the Convention the expression, "except in cases of impeachment,' was inserted after the word "pardons" without objection or debate, and the term "but his pardon shall not be pleadable in bar of an be explained by a reference to the letter of resignation from General Harrison; to the letter of the President to the Secretary of War of May 24; to the issuing of the commission of major general to General Jackson, and the letter of the Secretary of War accompanying it. "The following course will be observed in future: "To be previously communicated to the President: "1. Orders from the Department of War establishing general or permanent regulations. "2. Orders for courts of enquiry or courts-martial on general officers or designating the numbers or members of the courts. "3. Commissions or notifications of appointment to officers, other than regular promotions in uncontested cases. "4. Dismissions of officers from the service. "5. Consolidations of corps or parts of corps, and translations of field officers from one regiment to another. "6. Acceptances and refusals of resignations from officers above the rank of captains. "7. Requisitions and receptions of militia into the service and pay of the United States. "8. Instructions relating to treaties with Indians. "9. Instructions to officers commanding military districts, or corps or stations, relative to military movements or operations. "10. Changes in the boundaries of military districts or the establishment of separate commands therein; or the transfer of general officers from one district or command to another district or command. "In the absence of the President from the seat of government previous communications to him may be waived in urgent cases, but to be subsequently made without delay. All letters giving military intelligence, or containing other matters intended or proper for the knowledge of the President, will of course be immediately communicated to him. "These rules may omit cases falling within, and embrace cases not entirely within, the reason of them. Experience therefore may improve the rules. In the meantime they will give a more suitable order and course to the business of the department; will conduce a more certain harmony and co-operation in the proceedings of the several departments; and will furnish the proper opportunities for the advantage of cabinet consultations on cases of a nature to render them expedient. "J. Madison."-Writings of Madison, vol. 3, 417-419. 39 Journal, 457. 40 impeachment" was omitted. When the provision went to the Committee on Style it was adopted in its present form. Conferring the power to pardon upon the President finds ample precedent in the history of England, where it has long been a prerogative of the Crown. It is an unlimited power and beyond the reach of Congress to control. Mr. Justice Miller said of this provision, "In the absence of any more particular definition of it than is found in this short sentence of the Constitution, so far as it has become the subject of public discussion or of judicial decision reliance has been had mainly upon the nature and character of the power, as exercised by the Crown of Great Britain."'42 Under this provision the power of the President to grant a pardon applies to every offence committed against the Government, including treason, except where an officer has been adjudged guilty on impeachment. As a general rule, a pardon restores the offender to the rights of citizenship, which would include the right to hold office and occupy a position of trust or profit under the Government, but it was the evident purpose of the framers of the Constitution that the judgment of the Senate in cases of impeachment should not be revoked, even by the Chief Executive, but should endure undisturbed through life. There are two limitations to the President's power of pardon; First, he can pardon only for offences against the United States; second, he cannot pardon an impeached person. With these exceptions his power to pardon is unlimited. A reprieve is a suspension of the execution of a sentence for a limited time. It is said to be a withdrawal or withholding of a punishment for a time after conviction and sentence, being in the nature of a stay of execution.43 "A pardon is an act of grace by which an offender is released from the consequences of his offense. 40 Journal, 612. 41 Journal, 709. 42 Miller on Constitution, 165. 43 Bouvier's Dictionary. It releases the offender and restores to him all civil rights. But it does not make amends for the past. It affords no relief for what has been suffered by his imprisonment, forced labor or otherwise; nor does it give compensation for what has been done or suffered, nor impose upon the government any obligation to give it.' But it includes the power to grant relief from fines, penalties and forfeitures which follow from the commission of the offence.45 7744 An act of Congress allowed those persons whose property had been taken as captured and abandoned and sold, and the proceeds thereof turned into the treasury of the government, to claim the money and recover it by proceedings in the Court of Claims, on proof that claimants had been loyal citizens during the Civil War. The Supreme Court had decided that a pardon made proof of loyalty unnecessary. To offset the effect of this decision Congress passed an act that proof of loyalty was necessary to recovery, "notwithstanding any executive proclamation, pardon, amnesty or other act of condonation or oblivion." But the Supreme Court held this act unconstitutional," Justices Miller and Bradley dissenting. In the opinion, Chase, C. J., said, "The legislature cannot change the effect of such a pardon any more than the Executive can change a law. Yet this is attempted by the provision under consideration. The court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the court to be instrumental to that end.' 9947 The power of pardon, exercised at any time, either before legal proceedings are taken, or during their pendency, or after conviction and judgment, is not subject to legislative trial. Congress can neither limit the effect of a pardon nor its exercise in classes of offenders. The benign 44 Knote v. United States, 95 U. S., 149–153. 45 United States v. Osborn, 91 U. S., 474. 46 United States v. Klein, 13 Wallace, 148. 47 Miller on the Constitution, 166. 49 prerogative of mercy reposed in the President cannot be fettered by any legislative restrictions. It has been held, "A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.''48 Deady, D. J., in commenting on this language, said: "This is probably as strong and unqualified a statement of the law, scope and efficacy of a pardon as can be found in the books. And yet I do not suppose the opinion is to be understood as going to the length of holding that while the party is to be deemed innocent of the crime by reason of the pardon from and after the taking effect thereof, that it is also to be deemed that he never did commit a crime or was convicted of it. The effect of the pardon is prospective and not retrospective. It removes the guilt and restores the party to a state of innocence. But it does not change the past and cannot annihilate the established fact that he was guilty of the offence." A pardon and amnesty made by a public proclamation of the President has the force of public law, of which all courts and officers must take notice, whether especially called to their attention or not.50 A case involving the extent of the pardoning power arose under an act of Congress of June 30, 1864, which gave a portion of the penalty to informers. Judgment was rendered against the defendant. But before the judgment or any part thereof was paid, the President issued to the defendant a full and unconditional pardon of the judgment and penalties. It was claimed that the pardon could not include that portion of the judgment to which the informer was entitled by the terms of the statute, but it was held by McDonald, D. J., that it did.51 A pardon may be granted on such conditions as the 48 Ex parte Garland, 4 Wallace, 380. 51 United States v. Thomasson, 4 Bissell, 336. President may choose to impose,52 and may be granted as well before trial as after conviction.5 53 But the conditions to be valid must be reasonable. If a condition should be included in a pardon to the effect that the one who is pardoned should never tell the truth, or that he should commit a crime, or that he should not thereafter eat or sleep, the pardon would be of no validity.54 A statute which authorizes other officers than the President to remit penalties and forfeitures does not conflict with the power of the President to pardon.55 A pardon may be revoked any time before delivery,50 and when obtained through fraud is void.57 The President alone can pardon a violation of an act of Congress in a territory.58 In an opinion by Attorney-General Crittenden it is said, "To understand the meaning of a pardon and the extent to which the power to pardon may be rightfully exercised by the President of the United States, we must look to the books of authority respecting the prerogative power of pardoning rightfully belonging to the King of Great Britain, by the common law of the people of England; whose principles of jurisprudence the people of the United States brought with them as colonists and established here, in so far as they were of a general nature, not local to that kingdom and not repugnant to the American institutions." The opinion reviewed many cases and the conclusion reached was, "that the President cannot, in the exercise of his pardoning power, remit pecuniary penalties attached to an offence, unless those penalties accrue to the United States.''59 "A pardon by the President of the United States, after condemnation involving all the interests of the United States in the penalty incurred by violating the embargo laws, and which discontinued all further proceedings on the part of the United States, did not, it was held, 52 United States v. Klein, 13 Wallace, 147; 11 Op. A. G. 229. 53 Miller on Constitution, 165. 54 11 Op. A. G., 229. 55 The Laura, 114 U. S., 414. 56 In re De Puy, 7 Fed. Cases, 506. 57 11 Op. A. G., 229. 58 7 Op. A. G., 561. 59 5 Op. A. G., 532-536. |