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Opin. 341; provided the condition be compatible with the genius 417. of our Constitution and laws. Id. 482. Where the condition is such that the governmeut has no power to carry it into effect, the pardon will be in effect unconditional. 5 Id. 368. See Flavell's Case, & W. & S. 197; United States v. Wilson, 7 Pet. 161; People In bat v. Potter, 1 Parker C. R. 47. The pardoning power includes that cases? of remitting fines, penalties, and forfeitures, under the revenue laws; 2 Op. 329; the laws prohibiting the slave-trade; 4 Id. 573; tines 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. Vor, 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 Washı. C. C. 64; 4 Opin. 376; 6 Id. 615; and see 5 Id. 532, 579. The grant of the pardoning power neither requires por anthorizes 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 oficial act; it must be Munt the delivered to and accepted by the criminal, and cannot be noticed by pardon be the court, unless brought before it judicially by plea, motion, or

accepted! 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. 561. He has power to order a wille 282. 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.

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 judyment. This power of the President is not subject to legislative control.

Congress can neither limit the effect of his pardon, nor exclude Can Con. from its exercise any class of offendes. The benign prerogative of Fress limit

the jardon? mercy cannot be fettered by any legislative restrictions. Es parte Garland, 4 Wall. 380.

A pardon reaches both the punishment prescribed for the offense What does and the guilt of the ofender; and when ihe pardon is full, it re- th- pardon leases the punishment and blots out the existence the guilt ; so that in the eye of the law the offender is as innocent as if he had Dever committed the offense. If granted before conviction, it pre- 418. vents any of the disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restorey him to all his civil rights; it makes him, as it were, a new man, and gives bim a new credit and capacity. Ex parte Garland, 4 Wallace, 380, 38). This court is obliged to conform to these principles. Judge Duval, in the case of the United

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Devine. States v. Devine, Texas, June Term, 1867. There is only ono

limitation to its operation; it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judginent. (4 Blackstone's Com. 402; 6 Bacon's Abridg. ment, tit. Pardon; Hawkins, book 2, ch. 37, S 44 and 51.) Ez

parte Garland, 4 Wallace. 381. What is the The pardon produced by the petitioner is a full pardon "for all effect of the offenses from participation, direct or implied, in the rebellion." the rebels? This relieves him from all penalties and disabilities attached to the 142, 143, 242, offense of treason, committed by his participation in the rebellion. 254. 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 274. cannot affect an attorney, who had been previously such of the

court, after pardon. Congress cannot inflict punishment beyond the reach of executive clemency. Ec parte Garland, 4 Wallace, 381.

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.

What is the [2.] He shall have power, by and with the advice The Presi- and consent of the Senate, to make treaties, provided treaties tand two-thirds of the Senators present concur; and he appointments ?

shall nominate, and by and with the advice and con179. sent of the Senate, shall appoint ambassadors, other

public ministers' and consuls, judges of the Supreme 418. 426. 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 188. President alone, in the courts of law, or in the heads

of departm: ts.
178. “HE SHALL HAVE POWER, BY AND WITH THE ADVICE

THE SENATE, TO MAKE TREATIES, PROVIDED TWO-THIRDS OF THE SENATORS PRESENT CONCUR. IIow is the This "advice and consent is usually given after the treaty, or advice appointment is made and signed by the President. The work is usually given

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 coo

AND CONSENT OF

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sent of the Senate in advance, and it was so asked by President Treatles.
Polk upon the ratification of the Treaty with Great Britain, in
1846, relative to Oregon. See Marshall's Life of Washington,
ch. 2, p. 223; Executive Journal, 1lth Aug. 1790, pp. 60, 61;
Rawle's Censt. ch. 7, pp. 63, 64; Story's Const. § 1523 ; see Senate
Journal and Debates of July. 1846, upon the Oregon Treaty.

" MAKE TREATIES.”—[Fædus.] An agreement between two or What is a
more in dependent 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 & Elama 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, con-
sequently, 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 stipula-
tion import a contract, when either of the parties engages to per- 199.
form 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 rule for the court. Id.

The power extends to every kind of treaty. Story's Const. S 1508.
But the power cannot be exercised to override other parts of the
Constitution, and to destroy the fundamental principles of the gov.

Id.; Woodeson's Elem. of Jurisprudence, 31; 4 Jetl's
Corresp. 2, 3, 498; Rawle's Con t. 63-75. See the power discussed.
Story's Const. $ 1508, 1523; Ware v. Hylton, 3 Dall. 272-276.

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. § 1518.

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 qualities 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 oil.ce. 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

ernment.

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Vacancy. 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. Whitt 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 during the began, the power to fill requires the concurrent action of the Presi.

dent and Senate. It seems a necessary corollary to this, that 159. 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. Stan bery. What is the 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 tion!

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.

Hence his power at all times to vacate offices and to fill vacanpowers cancies. He can, by his own act, do every thing but give full title 10 dent confer?

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 con. sented 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 deci. sion we add the doctrine recognized by the same court in E.c 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.

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 appoint

ment is not fully consummated. (4 Opin. 213). Stapbery. What is the When the Senate has concurred and the commission " is signed effect of the by the President, even before delivery, the appointment is com

plete, 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. § 1518–1554. Mr. Jefferson refused to act upon this decision, and claimed the power to with. hold 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 r. 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.

coumission!

154.

dor?

189.

viously in the office and had created a vacancy. (Marbury v.

421, Madison. 1 Cr. 137-156.) Story's Const. § 155 t. See also John 422. son v. United States, 5 Mason, 125, 438, +39; United States v. Kirkpatrick, 4 Wheat. 733, 734; Bowerbank v. Morris, Wallace Cir R. 425, 435, 439; Thompson's Case, 3 P. Will. 194; Boucher v. Wiseman. Cro. Eliz. 440; Burch v. Maypowder, 1 Vt. 400.

180. “ AMBASSADOR3, OTER PUBLIC MINISTERS, AND CONSULS." What is an -"AMBASSADORS.” comprehend the highest grade only of public Ambassa. ministers. Story's Const. § 1525. See Grotius. Yattel, Martens, Wiequefort, Halleck (ch. , pp. 200-239) and Wheaton, Title, 202. AMBASSADORS. For a better detinition, see note 202.

Ambassadors could not include consuls, hence the enlargement of the enumeration. Scory's Const. § 1525; Federalist, No. 42.

See ant., p. 14, Art. IX.

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., Coxsul. suls ? The name of a chief magistrate among the Romans, and of Earls, from consulendo, among the Britons. Bract. fol. 5, b. i 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. i Kent's Com. 41.

182. “ JUDGES OF THE SUPREME COURT, AND ALL OTHER What offOFFICERS OF THE UNITED STATES, WHOSE APPOINTMENTS

the Presi. NOT HEREIN OTHERWISE PROVIDED FOR, AND WHICH SHALL BE dent ESTABLISHED BY LAW.”

appoint? 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.

Where else 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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179.

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