ordering or authorizing an officer or soldier, when under sentence, to exercise a command or perform any other duty inconsistent with the continued execution of his sentence, has been viewed as a constructive pardon, held that to allow an officer, while under a sentence of suspension from rank, to perform certain slight duties in closing his accounts with the United States, could not be regarded as having any such effect. XXXVII, 190, December, 1875. 1874. In certain cases of military offenders convicted of larceny of public property or conversion of public funds (or who had escaped from military custody while under charges for such offences) and applying for pardon, advised that, even if otherwise thought worthy of pardon, no pardon should be extended to them except upon the condition precedent of their making good the funds appropriated, or the property stolen or its value. I, 366, October, 1862; XIX, 132, November, 1865; XXVI, 648, July, 1868. 1875. The pardon or remission of the unexpired punishments of soldiers, where favored by the Judge-Advocate General, has been recommended on grounds of which the principal were the following:-That the soldier was a minor at enlistment; that he was enlisted under false representations as to the kind of service which would be required of him, made by the recruiting officer in disregard of par. 916, Army Regulations; that he enlisted as a mere recruit, did not have the Articles of War read to him, and had no proper comprehension of the gravity of his offence; that he did not comprehend his military obligations on account of an imperfect knowledge of the English language; that he was an Indian scout unacquainted with our language or with the Articles of War; that his offence was wholly or in part induced by harsh or injudicious treatment by a military superior; that excessive or unreasonable duty had been required of him, or that he had been put on duty (as a guard or sentinel, for example) when unfit for the same on account of illness or partial intoxication; that his offence was committed under a provocation, or was accompanied by circumstances of extenuation, to which the court had not given due weight; that prior to his trial and sentence he had been adequately disciplined by his commander; that he had been improperly held in irons, or handcuffed, pending the trial; that his confinement had so seriously impaired his health that if continued it would endanger his life; that an unreasonable time was allowed to elapse between his arrest and trial, or after trial and before the approval and promulgation of the sentence. These and other grounds have been taken into consideration, sometimes alone and sometimes in combination or in connection with such further favorable circumstances as voluntary return in case of deser 1See 6 Opins. At. Gen. 714. tion, previous good character, good conduct under sentence, &c. In cases of officers, the principal grounds for recommending pardon or remission have been-a previous good record for efficiency in the service, especially in time of war, a high personal character or reputation, and an apparent absence of a fraudulent or criminal intent in the offence as committed. IX, 245, 595, June and September, 1864; XIII, 99, December, 1864; XXVI, 540, April, 1868; XXVII, 505, February, 1869; XXVIII, 340, January, 1869; XXXII, 675, June, 1872; XXXIV, 661, December, 1873; 40, 386, May, 1890; 41, 273, June, 1890. 1876. In cases in which military offenders-such as deserters from the army remaining at large, or officers or soldiers who have escaped from military custody while in arrest or under sentence-have applied from their places of refuge for executive pardons, it has almost invariably been advised by the Judge-Advocate General that the application be not entertained till the fugitive from justice should return and surrender himself to the military authorities to stand his trial or abide by his sentence. XVII, 264, September, 1865; XIX, 132, November, 1865; 690, September, 1866; XXII, 285, July, 1866; XXIII, 309, October, 1866; XXVI, 648, July, 1868; XXXIV, 661, December, 1873; XXXV, 551, August, 1874; XXXVIII, 607, 652, May and June, 1877; XXXIX, 324, 326, November, 1877; XLIII, 171, January, 1880; 39, 482, March, 1890; 44, 390, December, 1890; Cards 3304, 3656, June and November, 1897; 5342, 5733, 5885, January and February, 1899. 1877. In cases of deserters from the army and from the draft, who, during the war of the rebellion, when men of patriotism and honor were offering their lives in the service of their country, took refuge in Canada shirking a grave public duty at a critical period of national peril and remained there till the close of the war, when, in the prospect of returning peace, they addressed to the Executive applications for pardon, advised, invariably, that such applications be denied. XVII, 208, August, 1865; XX, 44, October, 1865. 1878. A party who has been pardoned by the President for a political offence, or has taken advantage of a proclamation of amnesty (such as that of May 29, 1865, or Dec. 25, 1868), is not thereby relieved from amenability to trial and punishment for a crime, not of a politi cal character, committed by him, or from the legal consequences of the commission of such a crime. XXVIII, 394, February, 1869; XXIX, 35, June, 1869. 1879. A pardon is not retroactive. It cannot remit an executed punishment or restore an executed forfeiture resulting either by operation of law or sentence. It cannot therefore restore the forfeitures incident upon desertion. Further it cannot modify past history, or reverse or alter the facts of a completed record. From and after the taking effect of a pardon, the recipient is innocent in law as to any subsequent contingencies, but the pardon does not annihilate the fact that he was guilty of the offence. The pardon indeed proceeds upon the theory that the party was guilty in fact. The asking for it is an admission of guilt, and the granting of it is a recognition of the fact of guilt.' Thus held that the President could not, by a pardon, remove the charge of desertion from the record of a former soldier, who had long since become a civilian by reason of the muster-out and non-existence of the volunteer army to which he had belonged in the war of the rebellion; and that the effect of his pardon would not be to give him an honorable discharge. A pardon would not only not remove a charge of desertion, but would in fact confirm it, and constitute an additional reason for retaining it on the record. And a party cannot, by an executive act, be discharged from the service unless he is in the service. L, 395, June, 1886; 42, 406, August, 1890; 43, 36, September, 1890; 48, 232, July, 1891; Cards 3125, April, 1897; 3794, 3810, January, 1898. 1880. Where it was proposed to authorize and direct the Secretary of War, by act of Congress, "to revoke and set aside the proceedings had by a court-martial during the month of November, 1865, and to remit the sentence promulgated thereunder by order of April 13, 1866,” held that it was beyond the constitutional power of Congress to thus invest the Secretary of War with the pardoning power and to extend it to a sentence long since carried into execution. The pardoning power of the President can neither be added to nor detracted from by legislation, and it has been repeatedly held with reference to this power that it cannot reach an executed sentence. must be therefore beyond the authority of Congress to vest in a subordinate official a power to pardon, which the constitutional pardoning power cannot exercise. Congress cannot in this or any other way undo the executed judgment of a court martial. 51, 357, January, 1892. * * * It 1881. A pardon by the President will reach and remove a continuing disqualification or disability incident upon the commission of an offence against the United States, or upon a conviction by a United States court or a court martial, but a disqualification incident under the laws of a State, to a conviction of an offence (no reference being made in said laws to convictions by courts martial) would not apply to a conviction of that offence by a court martial of the United States. LVI, 628, September, 1888. 1882. Held that a withdrawal by a department commander of a 'See Er parte Garland, 4 Wallace 333; Knote r. U. S., 95 U. S., 153; In re Spenser, 5 Sawyer, 195 (Federal Cases, No. 13,234). See §§ 1272 and 1273, ante. pending charge against a soldier, upon his giving a pledge to abstain in the future from the conduct which was the subject of the charge, did not operate as a pardon and could not be pleaded as such. Had it been done by an order of the President, it could have had no further operation than as a quasi conditional pardon, leaving the charge legally renewable upon a repetition of the offence. 35, 423, October, 1889. 1883. The reappointment to the army of a dismissed officer does not operate as a condonation. The dismissal remains a dishonorable separation from the service. Card 2893, January, 1897. PATENT. 1884. The presumption in favor of the validity of a patent, arising from the action of the authorities in granting it, can be overcome only by reliable and certain proof. The grant of letters patent is prima facie evidence that the patentee was the first inventor of the device. described in the letters, and of its novelty. So, held that a claim by a patentee for a reasonable royalty for the use of his patent by the United States was not impugned by the affidavits of a third party to the effect that he was the real inventor, when such party had taken no action to contest the issuance of the patent nor resorted to the courts for his legal remedies. 53, 416, May, 1892. The use of a patent with the knowledge and consent of the patentee is an implied promise or agreement to pay for the same. Card 725, December, 1894. 1885. An existing royalty on a patented article is in the nature of a legal lien upon it, to be paid off before it can be safely used, and is also an element properly entering into the price to be paid for it, if purchased. The article is in law sold subject to this claim. So, held that the United States, in purchasing a patented article, as being necessary to the due prosecution of a certain work provided to be done by an appropriation act should justly pay a price estimated by the intrinsic value of the article, augmented by the probable amount of the royalties likely to accrue as income. 44, 358, December, 1890. 1886. An invention is property though it be not patented, and an injunction will be granted to restrain an infringement though the patent has been merely applied for. Thus it is safer for the United States not to purchase the right to use an invented article from any person other than the inventor, since a liability to the latter might thus attach.* 43, 264, October, 1890. Held that, should the Government make a purchase-from a person other than the inventor but claiming to be such— 1Osborne v. Glazier, 31 Fed. Rep. 402. 2 Cantrell . Wallick, 117 U. S., 695. 3 McKeever v. U. S., 18 Ct. Cls. 757. of telephones, the sale of which had been enjoined by the real patentee, the United States would be liable to him in damages, whether or not the fact of infringement or illegal sale was actually known at the time. of the purchase. 57, 297, January, 1893. The Government becomes. a tort-feasor in permitting the use in its service of an infringed patent.1 Card 725, December, 1894. 1887. Held, on the authority of the ruling of the Supreme Court in Major Burns' case,' that Capt. E. L. Zalinski, 5th Artillery, was entitled to compensation for the use by the United States of his patented pneumatic gun. 31, 106, March, 1889. 1888. The assignment to the United States of a patent right, for use in the public service, does not preclude the assignor from also assigning the right to a foreign government, provided the original assignment were not absolute in its terms. A sale of patent right for use in one district is not incompatible with a sale for use in another, such sales being in the nature of independent licenses. But, as a general rule, the United States should accept in such a case nothing short of an absolute assignment. 54, 214, June, 1892. 1889. The United States cannot be sued in the courts for the profits accruing to it by reason of the manufacture and use of a patented article, unless there is either an express or implied contract for such manufacture and use; nor, where the article is being manufactured under the direction of the War Department, has that department jurisdiction over such a claim. In the absence of such jurisdiction, the claim cannot be said to be "pending" in that department within the meaning of section 12, of the act of March 3, 1887. Card 3392, July, 1897. 1890. The United States should not refrain from purchasing necessary supplies simply because there might be involved in the transaction an infringement of some one's patent. In such a case, however, a bond should be required to indemnify the United States against any loss it might sustain on account of possible infringment of patents in the use of the article purchased. Card 4558, July, 1898. 1891. While it is clearly a violation of law (act of February 18, 1893, 27 Stats., 461) for the inventor of a device (range finder) considered and adopted by the Board of Ordnance and Fortification "to be a member or serve on said board", the act does not, where he has in fact so served, prohibit the purchase of the instrument invented by him. It merely affects his eligibility for membership of or service on the board. Card 6941, August, 1899. 1See Schillinger v. U. S., 155 U. S., 163. * U. S. v. Burns, 12 Wallace, 246. 16906-01-34 |