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pardon produced by the petitioner, and the nature of the pardoning power of the President.

The Constitution provides that the President "shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." Article II. § 2.

The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. 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. If granted before conviction, it prevents any of the penalties and 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.

There is only this limitation to its operation: it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment. 4 Bl. Com. 402; 6 Bacon's Abridg. tit. Pardon; Hawkins, Book 2, c. 37, §§ 34 and 54.

The pardon produced by the petitioner is a full pardon " for all offences by him committed, arising from participation, direct or implied, in the Rebellion," and is subject to certain conditions which have been complied with. The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offence of treason, committed by his participation in the Rebellion. So far as that offence is concerned, he is thus placed beyond the reach of punishment of any kind. But to exclude him, by reason of that offence, from continuing in the enjoyment of a previously acquired right, is to enforce a punishment for that offence notwithstanding the pardon. If such exclusion can be effected by the exaction of an expurgatory oath covering the offence, the pardon may be avoided, and that accomplished indirectly which cannot be reached by direct legislation. It is not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency. From the petitioner, therefore, the oath required by the act of January 24th, 1865, could not be exacted, even if that act were not subject to any other objection than the one thus stated.

It follows, from the views expressed, that the prayer of the petitioner must be granted.

The case of R. H. Marr is similar, in its main features, to that of the petitioner, and his petition must also be granted.

And the amendment of the second rule of the court, which requires the oath prescribed by the act of January 24th, 1865, to be taken by attorneys and counsellors, having been unadvisedly adopted, must be rescinded. And it is so ordered.

SECTION II. TREATIES.

HAVER v. YAKER.

9 Wallace, 32. 1869.

[THE heirs of one Yaker instituted proceedings in a State court of Kentucky to have the real estate of their ancestor of the same name, which was in the possession of his widow, assigned to them.

It appears that Yaker, the ancestor, was born in Switzerland, and died intestate in Kentucky in 1853, having come to the United States some years previously and been naturalized as a citizen thereof. At the time of his death said Yaker was seized of real estate in Kentucky, and left a widow who was a resident and citizen of that State. The heirs who institute the proceeding, and who are the next of kin, were, at the time of Yaker's death, and thereafter remained, subjects of Switzerland and resident there.

At the date of the death of said Yaker, which, as above stated, was in the year 1853, the statutes of Kentucky denied the right of inheritance of real estate to aliens, save under certain conditions, within which the heirs of Yaker, who are the applicants for the assignment of his property, did not fall. Under these laws the widow was entitled to the real estate in question on the failure of heirs, or in case the persons who would otherwise have been heirs were not entitled to inherit on account of alienage.

In the year 1850 a treaty had been made between the representatives of the Swiss Confederation and like representatives of the United States (which treaty will be found in 11 Stat. at Large, 587), by the terms of which, as contended by the Yaker heirs, they were entitled to take and hold the real estate in question. This treaty provided by its terms that it should be submitted to the approval and ratification of the proper bodies in the two respective States, and that this ratification should be exchanged at Washington in due course. This treaty was duly submitted by such representatives to their respective States, but was not ratified by the United States, nor were the ratifications required by the terms of the treaty exchanged, until the year 1855, in which year the treaty was ratified by the Senate of

the United States after some alterations. The President thereupon made the treaty public.

It was contended on the part of the widow that the treaty under which the heirs claimed did not take effect until ratification in 1855, which was not until after her rights to the real estate had become vested.

In this view of the case it would be immaterial what construction should be put upon the terms of the treaty, inasmuch as it could not be given a retroactive effect so as to cut off the widow's rights, which had already vested under the statutes of Kentucky.

The Court of Appeals of Kentucky held that the treaty did not take effect until ratification, and therefore decided against the claims of the heirs of Yaker and in favor of the claims of his widow.

By writ of error this decision of the Court of Appeals of Kentucky was brought to this court for review.]

MR. JUSTICE DAVIS delivered the opinion of the court.

It is undoubtedly true, as a principle of international law, that, as respects the rights of either government under it, a treaty is consid ered as concluded and binding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect, confirming the treaty from its date. Wheaton's International Law, by Dana, 336, bottom paging. But a different rule prevails where the treaty operates on individual rights. The principle of relation does not apply to rights of this character, which were vested before the treaty was ratified. In so far as it affects them, it is not considered as concluded until there is an exchange of ratifications, and this we understand to have been decided by this court in Arredondo's case, reported in 6th Peters, p. 749. The reason of the rule is apparent. In this country, a treaty is something more than a contract, for the Federal Constitution declares it to be the law of the land. If so, before it can become a law, the Senate, in whom rests the authority to ratify it, must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it, as was done with the treaty under consideration. As the individual citizen, on whose rights of property it operates, has no means of knowing anything of it while before the Senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law, so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust, and cannot be sanctioned.

These views dispose of this case, and we are not required to determine whether this treaty, if it had become a law at an earlier date, would have secured the plaintiffs in error the interest which they claim in the real estate left by Yaker at his death.

Judgment affirmed.1

1 In FOSTER V. NEILSON, 2 Pet. 253 (1829), which was a case involving conflicting claims of Spain and the United States to certain territory in the eastern district of Louisiana which the United States claimed under the treaty for the purchase of

THE PEOPLE, EX REL. THE ATTORNEY-GENERAL

v. GERKE.

5 California, 381. 1855.

APPEAL from the District Court of the Fourth Judicial District, San Francisco County.

On the 23d of August, 1853, one Auguste Deck, a citizen of Prussia, died intestate, in the city of San Francisco, leaving, undisposed of, a large amount of real estate.

On the 14th of September following, letters of administration were granted by the Probate Court to the defendant, Gerke.

Clark afterwards purchased from the absent heirs a large portion of the property.

An information was filed by the Attorney-General in the court below, citing the defendants to show cause why Deck's estate should not escheat to the State of California. The court below entered judgment pro forma, in favor of the People. Defendants appealed. HEYDENFELDT, J., delivered the opinion of the court.

By a convention between the United States and the Kingdom of Prussia, made in the year 1828, the fourteenth article provides, "And when on the death of any person holding real estate within the territory of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation."

The Attorney-General, in support of the information filed in this case, denies the power of the Federal government to make such a provision by treaty, and the determination of this case depends upon the solution of that question. Cases have frequently arisen where Louisiana, and the validity of certain Spanish grants thereof which were the subject of adjustment in a subsequent treaty between the two powers (made in 1818), in sec. 8 of which it was stipulated that grants of land made prior to a date named shall be ratified and confirmed, &c., it was held that the obligation of the provision was upon the government of the United States, which undertook thereby to pass acts which should ratify and confirm them. MARSHALL, C. J., in rendering the opinion of the court, uses this language:

“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 is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.

"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, whenever 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."

aliens have claimed to inherit by virtue of treaty provisions analogous to the one under consideration, and in all of them, so far as I have examined, the stipulations were enforced in favor of the foreign claimants. See 2 Wheat. 259; 4 ibid. 453; 8 ibid. 464; 9 ibid. 489; 10 ibid. 181.

But in none of these cases was the question raised as to the power of the Federal government to make the treaty. It has been the practice of the government from an early period after the ratification of the Constitution, and its power is now, I believe, for the first time disputed.

The language which grants the power to make treaties contains no words of limitation; it does not follow that the power is unlimited. It must be subject to the general rule, that an instrument is to be construed so as to reconcile and give meaning and effect to all its parts. If it were otherwise, the most important limitation upon the powers of the Federal government would be ineffectual, and the reserved rights of the States would be subverted. This principle of construction as applied, not only in reference to the Constitution of the United States, but particularly in the relation of all the rest of it, to the treaty-making grant, was recognized both by Mr. Jefferson and John Adams, two leaders of opposite schools of construction. See Jefferson's Works, Vol. III. p. 135; and Vol. VI. p. 560.

It may, therefore, be assumed that, aside from the limitations and prohibitions of the Constitution upon the powers of the Federal government, "the power of treaty was given, without restraining it to particular objects, in as plenipotentiary a form as held by any sovereign in any other society." This principle, as broadly as I have deemed proper to lay it down, results from the form and necessities. of our government, as elicited by a general view of the Federal compact. Before the compact, the States had the power of treaty-making as potentially as any power on earth; it extended to every subject whatever. By the compact, they expressly granted it to the Federal government in general terms, and prohibited it to themselves.

The general government must, therefore, hold it as fully as the States held who granted it, with the exceptions which necessarily flow from a proper construction of the other powers granted, and those prohibited by the Constitution. The only questions, then, which can arise in the consideration of the validity of a treaty are: First, Is it a proper subject of treaty according to international law or the usage and practice of civilized nations? Second, Is it prohibited by any of the limitations in the Constitution?

Taking for illustration the present subject of treaty, no one will deny that, to the commercial States of the Union, and indeed to the citizens of any State who are engaged in foreign commerce, a stipulation to remove the disability of aliens to hold property is of paramount importance, or, at any rate, it may be so considered by the States, and demanded as a part of their commercial polity.

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