to our own country? We cannot entirely, but may partially. So far as the grants of power, legislative or executive, are concerned, we must be governed entirely by our Constitution. Congress cannot do an act simply because Parliament may, but only because the organic law expressly or impliedly says they may. The President cannot do an act simply because the British crown may, but only because the Constitution, either by its specific or by its general grants, has clothed him with authority. But on the other hand, when the Constitution, in conferring powers upon either department, has used general language familiar to the common law of England, which it has not attempted to define or limit, and when this language has particular reference to the private rights, liberties, and privileges of the citizen, and not to mere political functions, we must go back to the English law to discover the full meaning of the terms employed, and the consequent extent of the powers granted.

With the aid of these canons of interpretation, I propose to examine (1) the powers of the President to grant pardons, and (2) the powers of Congress over the subject.

§ 685. I. The Extent of the President's Power. He shall have power to grant pardons. Pardons are not defined; no classification is made; no statement of the occasions on which they may be used; nothing descriptive or definitive. To obtain this particular and special meaning which shall interpret the clause, which shall throw light upon the executive authority, we must go back to the English law and inquire what pardon meant there; what pardons might there be granted; on what occasions; and with what effect. The extent of the President's function will thus be ascertained; he may resort to the act of grace whenever, under whatever circumstances, it might have been resorted to in England. This fundamental principle has been expressly recognized in one decision, and solemnly affirmed as the ratio decidendi in two judgments of the national Supreme Court. Thus, in the case of the United States v. Wilson,1 Chief Justice Marshall said: "The power to pardon had been exercised from time immemorial by the

1 7 Peters' R. 150.

Executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it."

§ 686. In Ex parte Wells, the Supreme Court examined this subject with great care, in deciding upon the validity of a conditional pardon which had been granted by the President. They said: "In the law 'pardon' has different meanings, which were as well understood when the Constitution was made, as any other legal word in the Constitution now is. Such a thing as a pardon without a designation of its kind is not known in the law. Time out of mind, in the earliest books of the English law, every pardon has its particular denomination. They are general, special or particular, conditional, absolute, statutory, not necessary in some cases, and in some grantable of course. We might mention other legal incidents of a pardon, but those mentioned are enough to illustrate the subject of pardons, and the extent or meaning of the President's power to grant reprieves or pardons. It meant that the power was to be used according to law; that is, as it had been used in England, and in these states while they were colonies; not because it was a prerogative power, but as incidents of the power to pardon. We think that the language used in the Constitution conferring the power to grant reprieves and pardons, must be construed with reference to its meaning at the time of its adoption. At the time of our separation from Great Britain, that power had been exercised by the king as the chief executive. Prior to the Revolution, the colonies being in effect under the laws of England, were accustomed to the exercise of it in the various forms as they may be found in the English law books. They were of course to be applied as occasions occurred, and they constituted a part of the jurisprudence of Anglo-America. At the time of the adoption of the Constitution, American statesmen were conversant with the laws of England, and

1 18 Howard's R. 307, 310, 311.

familiar with the prerogatives exercised by the crown. Hence, when the words to grant pardons' were used in the Constitution, they conveyed to the mind the authority as exercised by the English crown, or by its representatives in the colonies. At that time both Englishmen and Americans attached the same meaning to the word pardon. In the convention which framed the Constitution, no effort was made to define or change its meaning, although it was limited in cases of impeachments." In another portion of the same judgment, the court said: " But it was urged that the power to reprieve and pardon does not include the power to grant a conditional pardon, the latter not having been enumerated in the Constitution as a distinct power. It not unfrequently happens in discussions upon the Constitution, that an involuntary change is made in the words of it. And even though the change may appear to be equivalent, it will be found, upon reflection, not to convey the full meaning of the words used in the Constitution. This is an example of it. The power as given is not to reprieve and pardon, but that the President shall have power to grant reprieves and pardons. The difference between the real language and that used in the argument is material. The latter conveys only the idea of an absolute power as to the purpose or object for which it was given. The real language of the Constitution is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them. In this view of the Constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms." These views were again distinctly affirmed by the same court in Ex parte Garland.2

§ 687. Applying these principles to the determination of the President's power, and we say that he may resort to all the species which are included in the genus mentioned in the Constitution; he may at his discretion employ all the special acts of grace which in the English law would fairly fall under 24 Wallace's R. 333, 380.

1 18 Howard's R. 314.

the general term pardon. There were certain kinds of pardons issued on certain different occasions, and having certain different effects. The President may use any of these at will. Thus, after the indictment, trial, conviction, and sentence of an offender, a pardon may be granted to him for that particular offence, which shall have the effect to remit the whole punishment, or that portion of it not yet inflicted, and to restore the person to all the rights which he may have forfeited as a penalty of his crime. Such a pardon would of course address itself to the ministerial officers who are charged with the duty of executing the sentence. This is by far the most common form of pardon used in modern times.

§ 688. A second species known to the English law was the conditional pardon, generally issued after conviction and sentence, where the king annexed some condition to his act of grace, which the offender must accept and perform, or the pardon would be a nullity. The condition usually consisted in the substitution of some other punishment in the place of that which had been awarded by the court; or it might require of the criminal that he should do some positive act, as to leave the kingdom and live abroad. The former kind of conditions are often known as commutations of the original sentence, and are to be distinguished from those absolute pardons which remit part of a punishment, leaving the residue as originally imposed, and substituting no other penalty in the place of that remitted. The power of the President to issue conditional pardons was discussed and most conclusively established in Ex parte Wells1 before referred to.

§ 689. The king might also grant a pardon to a particular offender, forgiving him some specified crime, or all the crimes which he had committed, at any time before conviction, and even before trial, or indictment, or apprehension, or any official charge of crime made against the person. Such a pardon must address itself to the courts before whom the individual might afterwards be brought for trial; it must be brought to the notice of the judges as a fact. By the ancient English rules of pleading in criminal causes, it was required

1 18 Howard's R. 307.

that such a pardon, if received before conviction, should be pleaded in bar of the indictment; but if received after conviction and before sentence, should be pleaded in arrest of judgment. It is more than probable that at the present day it would be considered sufficient to present such a pardon to the notice of the court by motion, and that a formal plea would not be required. Even in the English law such formality was not required in at least one instance. Where Parliament pardons all persons, without any description of their offences, they need not plead the act of grace, but the courts will take judicial notice thereof.1

Pardons issued before conviction, or trial, or indictment, or any official proceeding, are well known to the English law; indeed there is no doubt that anciently they were more common than any other kind. Of course they assume that a particular person has, before the act of grace, committed some offence against the laws, for which he would be criminally liable. They must apply to an existing state of circumstances, where the liability has been fixed, and nothing remains to be done but to enforce that liability through the remedial process of the courts.

§ 690. The President has, under the generic language of the Constitution, full power to issue pardons to particular offenders before conviction, trial, indictment, or any official proceeding against them. This conclusion is inevitable from the reasoning in Ex parte Wells quoted in § 686. But the Supreme Court has expressly decided the point. In Ex parte Garland, the petitioner Garland had been engaged in the rebellion; the President had granted him a full pardon although no criminal proceedings had been instituted against him; he applied to be re-admitted to practice at the bar of the Supreme Court without taking the test oath; and rested his case partly upon the pardon he had received. The court, by Mr. Justice Field, said: "The power thus conferred [to grant pardons] is unlimited, with the exception stated [as to impeachments]. It extends to every offence known to the law, and may be exercised at any time after its commission, either 1 1 Chitty's Cr. Law, 466. 2 4 Wallace's R. 333, 380.