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Opin. 341; provided the condition be compatible with the genius of our Constitution and laws. Id. 482. Where the condition is such that the government has no power to carry it into effect, the pardon will be in effect unconditional. 5 Id. 368. See Flavell's Case, 8 W. & S. 197; United States v. Wilson, 7 Pet. 161; People In what v. Potter, 1 Parker C. R. 47. The pardoning power includes that cases? of remitting fines, penalties, and forfeitures, under the revenue laws; 2 Pet. 329; the laws prohibiting the slave-trade; 4 Id. 573; fines imposed on defaulting jurors, 3 Id. 317; 4 Id. 458; for a contempt of court; 3 Id. 622; and in criminal cases; Id. 418; even treason, amnesty proclamations, and warrants. And the same power is possessed over a judgment, after security for its payment shall have been given, as before. Id. But the President has no power to remit the forfeiture of a bail-bond. 4 Id. 144. Nor, it seems, can he, by a pardon, defeat a legal interest or right which has become vested in a private citizen; as, for example, the vested right of an officer making a seizure. United States v. Lancaster, 4 Wash. C. C. 64; 4 Opin. 376; 6 Id. 615; and see 5 Id. 532, 579. The grant of the pardoning power neither requires nor authorizes the President to re-examine the case upon new facts; nor to grant a pardon upon the assumption of the new facts alleged. 1 Opin. 359. A pardon is a private though official act; it must be Must the delivered to and accepted by the criminal, and cannot be noticed by pardon be accepted? the court, unless brought before it judicially by plea, motion, or otherwise. United States v. Wilson, 7 Pet. 150. The President alone can pardon offenses committed in a territory in violation of acts of Congress 7 Opin. 761. He has power to order a nolle prosequi in any stage of a criminal proceeding, in the name of the United States. 5 Id. 729. He pardoned the rebels upon their taking the oath of amnesty, with certain exceptions, by general proclamation. The warrants issued to those within special exceptions were all conditional.

231.

232.

The power to pardon is unlimited, with the exceptions stated. What is the It extends to every offense known to the law, and may be exercised extent of the at any time after its commission, either before legal proceedings power? are taken, or during their pendency, or after conviction and judg ment. This power of the President is not subject to legislative control.

Congress can neither limit the effect of his pardon, nor exclude Can Confrom its exercise any class of offenders. The benign prerogative of gress limit the pardon? mercy cannot be fettered by any legislative restrictions. Ex parte Garland, 4 Wall. 380.

reach ?

A pardon reaches both the punishment prescribed for the offense What does and the guilt of the offender; and when the pardon is full, it re- the pardon leases the punishment and blots out the existence of the guilt; so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. Ex parte Garland, 4 Wallace, 380, 381. This court is obliged to conform to these principles. Judge Duval, in the case of the United

What is the

effect of the pardon of the rebels?

254.

There is only one

States v. Devine, Texas, June Term, 1867.
limitation to its operation; it does not restore offices forfeited, or
property or interests vested in others in consequence of the convic-
tion and judgment. (4 Blackstone's Com. 402; 6 Bacon's Abridg-
ment, tit. Pardon; Hawkins, book 2, ch. 37, § 44 and 54.) Ex
parte Garland, 4 Wallace, 381.

The pardon produced by the petitioner is a full pardon "for all offenses, from participation, direct or implied, in the rebellion." This relieves him from all penalties and disabilities attached to the 142, 143, 242, offense of treason, committed by his participation in the rebellion. So far as that offense is concerned, he is thus placed beyond the reach of punishment of any kind. (Ex parte Garland, 4 Wallace, 381.) The United States v. Devine, before Judge Duval, in the United States Circuit Court for the Western District of Texas, June Term, 1867. The expurgatory oath required by attorneys cannot affect an attorney, who had been previously such of the court, after pardon. Congress cannot inflict punishment beyond the reach of executive clemency. Ex parte Garland, 4 Wallace, 381.

242.

271.

What is the power of

the Presi

dent as to

appointments?

179.

The remission of a penalty after it has been paid has no effect. Edwin M. Stanton, Attorney-General, 3d Jan. 1861.

See 1 Kent's Com. 11 Ed. Part II. Lect. 13, p. 283-285 and notes; Story's Const. § 1494, 1504; Federalist, No. 74; 2 Wilson's Law Lect. 198-200; 2 Elliot's Debates, 366; Rawle's Const. ch. 17, p. 178.

[2.] He shall have power, by and with the advice and consent of the Senate, to make treaties, provided treaties and two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

188.

How is the advice usually given?

178. "HE SHALL HAVE POWER, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO-THIRDS OF THE SENATORS PRESENT CONCUR.

This "advice and consent" is usually given after the treaty, or appointment is made and signed by the President. The work is then sent to the Senate, to ask the "CONCURRENCE of two-thirds." But it is in the option of the President to ask the advice and con

sent of the Senate in advance, and it was so asked by President Polk upon the ratification of the Treaty with Great Britain, in 1846, relative to Oregon. See 5 Marshall's Life of Washington, ch. 2, p. 223; Executive Journal, 11th Aug. 1790, pp. 60, 61; Rawle's Const. ch. 7, pp. 63, 64; Story's Const. § 1523; see Senate Journal and Debates of July, 1846, upon the Oregon Treaty.

"MAKE TREATIES.""-[Fœdus.] An agreement between two or What is a more independent States. Brande. An agreement, league, or con- treaty? tract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns, or the supreme power of each State. Webster's Dic., TREATY; Burrill's Dic., TREATY. See Halleck's International Law, ch. 34, pp. 189, 844.

A treaty is, in its nature, a contract between two nations; not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument. Foster & Elam v. Neilson, 2 Peters,

314.

In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, wherever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court. Id.

The power extends to every kind of treaty. Story's Const. § 1508. But the power cannot be exercised to override other parts of the Constitution, and to destroy the fundamental principles of the government. Id.; Woodeson's Elem. of Jurisprudence, 31; 4 Jeff's Córresp. 2, 3, 498; Rawle's Const. 63-75. See the power discussed. Story's Const. § 1508, 1523; Ware v. Hylton, 3 Dall. 272-276.

199.

199.

240.

181.

179.." HE SHALL NOMINATE."-The word as here used means Define to recommend, in writing to the Senate, the name of an appointee nominate? for confirmation. It is in this form the "advice of the Senate" is asked. This is the sole act of the President, and is voluntary.. Marbury v. Madison, 1 Cr. 137; 1 Peter's Cond. 270; Story's Const. § 1548.

But the practice, when the Senate is not in session (and I think sometimes when it is), is, that the President fills vacancies, and the appointee qualifies and enters upon the duties of his office. In such cases, the NOMINATION is not confined to the PROVISIONAL appointee; but the President may and often does appoint another. See Stanbery on appointments to office. 14-19.

"AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE Appoint? SHALL APPOINT."-It will be observed that, as in the nomination, the duty is imperative-" shall nominate," "shall appoint."

This power to fill vacancies is in the President, with the assent of the Senate, whilst that body is in session, and in the President alone when the Senate is not in session. There is no reason upon

recess?

189.

which the power to fill a vacancy can be limited by the state of things when it first occurred. On the contrary, the only inquiry is as to the state of things when it is filled.

What is the All admit that whenever there is a vacancy existing during the effect of an session, whether it first occurred in the recess or after the session appointment during the began, the power to fill requires the concurrent action of the President and Senate. It seems a necessary corollary to this, that where the vacancy exists in the recess, whether it first occurred in the recess or in the preceding session, the power to fill is in the President alone. If, during the recess, the power is not in the President, it is nowhere, and there is a time when for a season the President is required to see that the laws are executed, and yet denied every means provided for their execution. Stanbery. Nevertheless, it comes back to the point that the President can effect of the only "appoint," with the concurrence of the Senate; and all the appointments whether during the recess, or the session of the Senate are provisional only, and subject to the concurrence, in common parlance, "ratification," of that body.

What is the

confirma

tion?

What

the Presi

dent confer?

Hence his power at all times to vacate offices and to fill vacanpowers can cies. He can, by his own act, do every thing but give full title to his appointees, and invest them with the right to hold during the official term. That he cannot do without the consent of the Senate; but such is his power over officers, that, after the Senate has consented to his nomination, or in common parlance, has confirmed it, the nominee is not yet fully appointed, or even entitled to the office, for it still remains with the President to give him a commission or to refuse it, as he may deem best; and without the commission there is no appointment. This was held by the Supreme Court in. Marbury v. Madison, 1 Cr. 137, 155, 156; and when to that decision we add the doctrine recognized by the same court in Ex parte Hennen, (13 Pet. 213), we see how fully the appointment and removal of officers is held to be a necessary incident of executive power. Stanbery, 18, 19.

What is the

commis

sion?

184.

The nomination and appointment are voluntary acts, and distinct from the commissioning. Marbury v. Madison, 1 Cr. 155-6. Even after confirmation, the President may, in his discretion, withhold a commission; and, until a commission has been signed, the appointment is not fully consummated. (4 Opin. 218). Stanbery.

When the Senate has concurred and the "commission" is signed effect of the by the President, even before delivery, the appointment is complete, and the officer has vested legal rights which cannot be resumed. Marbury v. Madison, 1 Cr. 156; United States v. Le Baron, 19 How. 74; Story's Const. § 1548-1554. Mr. Jefferson refused to act upon this decision, and claimed the power to withhold the commission. 4 Jeff. Corr. 75, 317, 372; Rawle on the Const. 166; Story's Const. § 1553, note 1.

To "appoint," and to "commission," are not one and the same thing. Marbury v. Madison, 1 Cr. 155. The commission is not necessarily the appointment, although conclusive evidence of the fact. Id.; United States v. Le Baron, 19 How. 74.

When the appointee refuses to accept, the successor is nominated in his place, and not in the place of the person who had been pre

viously in the office and had created a vacancy. (Marbury v. Madison, 1 Cr. 137-156.) Story's Const. § 1554. See also Johnson v. United States, 5 Mason, 425, 438, 439; United States v. Kirkpatrick, 4 Wheat. 733, 734; Bowerbank v. Morris, Wallace Cir. R. 425, 438, 439; Thompson's Case, 3 P. Will. 194; Boucher v. Wiseman, Cro. Eliz. 440; Burch v. Maypowder, 1 Vt. 400.

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dor?

180. "AMBASSADORS, OTHER PUBLIC MINISTERS, AND CONSULS." What is an AMBASSADORS," comprehend the highest grade only of public Ambassa ministers. Story's Const. § 1525. See Grotius, Vattel, Martens, Wicquefort, Halleck (ch. 9, pp. 200-239) and Wheaton, Title, AMBASSADORS. For a better definition, see note 202.

Ambassadors could not include consuls, hence the enlargement of the enumeration. Story's Const. § 1525; Federalist, No. 42. See ante, p. 14, Art. IX.

202.

189.

181. "PUBLIC MINISTERS AND CONSULS."-CONSULS.-For the derivation of the word consul (consulere, consulatus, comes, comi- Define contatus), see Co. Litt. lib. 3, note 20; Burrill's Law Dic., CONSUL. suls? The name of a chief magistrate among the Romans, and of Earls, from consulendo, among the Britons. Bract. fol. 5, b. ; 1 Bl. Com. 227. For the origin, history, and duty of consuls, see Halleck's International Law, ch. 15, 239-269, and the many learned authorities there cited.

In commercial and international law, a public agent, appointed by a government to reside in a foreign country (and usually in seaports), to watch over its own commercial rights and privileges, and the commercial interests of its citizens or subjects. 1 Kent's Com. 41.

182. "JUDGES OF THE SUPREME COURT, AND ALL OTHER What offOFFICERS OF THE UNITED STATES, WHOSE APPOINTMENTS ARE cers can the PresiNOT HEREIN OTHERWISE PROVIDED FOR, AND WHICH SHALL BE dent ESTABLISHED BY LAW."

Judges of the Supreme Court are defined in the Constitution. (Art. III. sec. 1.)

The effect of this and other clauses of the Constitution, on the subject of the appointments to office, is to declare that all offices under the federal government, except in cases where the Constitution itself may otherwise provide, shall be established by law. United States v. Maurice, 2 Brock. 96.

Every thing concerning the administration of justice, or the general interests of society may be supposed to be within the meaning of the Constitution, especially if fees and emoluments are annexed to the office. But there are matters of temporary and local concern, which, although comprehended in the term officers, have not been thought to be embraced by the Constitution. (Lehman v. Sutherland, 3 Serg. Rawle, 149.) Attorney-General Stanbery's Opinion on the Reconstruction Laws, 24th May, 1867, p. 12.

appoint? 179.

Where else

power be

183. "BUT THE CONGRESS MAY VEST BY LAW THE APPOINT- may the MENT, ETC., OF INFERIOR OFFICERS IN THE PRESIDENT ALONE, IN appointing THE COURTS OF LAW, OR IN THE HEADS OF Departments."-Here vested?

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