States was before the people of the States for their ratification, they were told, that, with the exception of duties on exports and imports, the States retained "an independent and uncontrollable authority" "to raise their own revenue in the most absolute and unqualified sense" and that any attempt, on the part of the federal government, to abridge them in the exercise of it, would be "a violent assumption of power unwarranted by any clause of the Constitution." Fed., 163, by Hamilton. And the opinions of this court are filled with disclaimers on the same subject. 4 Wheat., 429. The true principle, therefore, would seem to be, that if there was any conflict in the tax laws of the State and a supposed contract of its legislative or executive agents with one of its citizens, it would be for the State to harmonize the two upon principles of general equity; but in no condition of facts for the Judiciary Depart ment to interfere with state affairs by writs of replevin or injunction. The acknowledgment of such a power would be to establish the alarming doctrine that the empire of Ohio, and the remaining States of the Union, over their revenues, is not to be found in their people, but in the numerical majority of the judges of this

court.

In the opinion I gave in the case of The Piqua Bank, I exhibited evidence that the care of the public domain, whether consisting of crown lands or of taxes on property, belonged to the sovereign power of the State, and that improvident alienations by the Crown were, from time to time, set aside by the Parliament of Great Britain under the dictates of a public policy. Twelve Acts of Parliament are cited by Sir Wm. Davenant of this character, and having this object. Davenant. Grants and Res., 244.

A similar condition existed in France. The kings were bound, by their coronation oath " to maintain and preserve the public domain with all their power," and it was an inviolable max. im, that it could not be alienated except in specified cases determined in the fundamental laws of the monarchy. This legal result was declared by the National Assembly in 1790, to the effect that the public domain, with all its accretions, belonged to the nation; that this property is the most perfect that can be imagined, since there exists no superior power that can restrain or modify it; that the power to alienate -the essential attribute of property-exists in the nation; that every appropriation of the public domain is essentially revocable, if made without the consent of the nation; that it preserves over the property alienated the same right and authority as if it had remained under its control; and that this principle was one which no lapse of time nor legal formality could evade. All grants, therefore, of the public rights, and especially those partaking of the nature of taxes, or subsidies, such as fines, confiscations, and stamps, were revoked, be cause the subject was not alienable.

8 Merlin Rep., tit. Dom. Pub.; 1 Proud., Dom. Pub., 62.

was reserved to the nation, it would seem to follow that in the American States, where so little has been conceded to the government, and whose "complete power" to amend or abrogate is so distinctly reserved that no inference nor implication can arise, that the same has been relinquished or abdicated. My conclusion is, that the constitution of Ohio, whether it is to be regarded as the expression of the sovereign will of the people, that the extraordinary exemptions granted to these corporations, by which they contribute unequally to the public support, is contrary to the genius of their institutions; or whether they are inconsistent with a just apportionment of the public burdens; or whether, as a declaration of the exigency of the State, requiring an additional contribution from them to its revenue; or a judgment of condemnation of the former government for an abuse of the powers it enjoyed; that it is above and beyond the supervision or control of the Judiciary Department of this government.

Nor does the opinion, that this department can exert such an empire over the people of Ohio, derive support, in my opinion, from the clause in the Constitution on the subject of the obligation of contracts, nor the decisions of this court upon that clause of the Constitution.

That the people of the States should have released their powers over the artificial bodies which originate under the legislation of their representatives, or over the improvident charges or concessions imposed by them upon its revenues, or over the acts of their own functionaries, it is not to be assumed. Such a surrender was not essential to any policy of the Union, nor required by any confederate obligation. Such an abandonment could have served no other interest than that of the corporations, or individuals who might profit by the legisla tive acts themselves. Combinations of classes in society, united by the bond of a corporate spirit, for the accumulation of power, influence or wealth, by the control of intercourse or trade, or the spiritual or moral concerns of society, unquestionably desire limitations upon the sovereignty of the people, and the existence of an authority upon which they can repose in security and confidence. But the framers of the Constitution were imbued with no desire to call into existence such combinations, nor dread of the sovereignty of the people. They denied to Congress the power to create (3 Mad. Deb., 1576), and the most salutary jealousy was expressed in reference to them. The people of the States, during the existence of the confederation, suffered from the violation of private property by their governments. In reconstituting their political system, they abstained from delegating to the United States the powers to emit bills of credit; to make anything but gold and silver a tender in the payment of debts; to pass any bill of attainder or ex post facto law, or law to impair the obligation of contracts, except so far as necessary to a uniform law of bankruptcy; while they protected property from unreasonable searches and seizures, and the title from detriment, except in the due course of legal proceeding.

If the power to review the illegal or improv ident acts of a monarch, by which the domain and patrimony of the Crown (one of the principal sinews of the State, as they are termed in the ordinances) was dilapidated or impoverish-eral or state constitutions. ed in the nearly absolute monarchies of Europe,

The state governments were prohibited from any corresponding legislation, either in the fed

The power to interfere with private contracts

quently decided (Satterlee v. Matthewson, 2 Pet., 380; Charles River Bridge 11 Pet., 420; West River Bridge v. Dix, 6 How., 507; 8 How., 539; 10 How., 511), show with clearness that this court has not, till now, impugned the sovereignty of the people of a state over these artificial bodies called into existence by their own Legislatures.

I have thus given the reasons for the opinion that the constitution of Ohio and the acts of her government, done by its special author ity and direction, are valid dispositions. It is no part of my jurisdiction to inquire whether these public acts of the people and the State were just or equitable. These questions belong entirely to themselves.

It may be that the people may abuse the powers with which they are invested, and even in correcting the abuses of their government, may not in every case act with wisdom and circumspection.

is one of the most delicate and difficult, in its | exercise, of any belonging to the social sys tem, and one which there is constant tempta tion to abuse. That its exercise is sometimes necessary is proved by the history of every civilized state. Its judicious exercise constitutes the title of Solon and Sulla to fame, and has been vindicated by the most enlightened statesmen. But the people reserved to themselves to determine the exigences which should call it into existence. The prohibition is a limitation upon the ordinary government, and not upon the popular sovereignty. In Fletcher v. Peck, 6 Cranch, 87, the Chief Justice doubted whether the repeal of a grant, issued under a legislative act by the Executive of a state, was within the competence of the legislative authority; and notices the distinction between Acts of legislation and sovereignty, and treats the clause of the Constitution under consideration as an inhibition on legislation. In Dartmouth College v. Woodward, 4 Wheat., 518, 553, Mr. Webster But, for my part, when I consider the justice, presents the distinction with prominence in his moderation, the restraints upon arbitrary pow argument. He says: "It is not too much to as er, the stability of social order, the security of sert that the Legislature of New Hampshire personal rights, and general harmony which would not have beeh competent to pass the existed in the country before the sovereignty of Acts in question, and make them binding on governments was asserted, and when the sovthe plaintiffs, without their assent, even if there ereignty of the people was a living and operahad been in the Constitution of the United tive principle, and governments were adminis States, or of New Hampshire, no special re- tered subject to the limitations and with referstriction on their power, because these Acts are ence to the specific ends for which they were ornot the exercise of a power properly legisla-ganized, and their members recognized their tive. **** The British Parliament could not responsibility and dependence, I feel no anxihave annulled or revoked this grant as an ordi- ety nor apprehension in leaving to the people of nary act of legislation. If it had done it at all, Ohio a complete power" over their governit could only have been in virtue of that sover- ment, and all the institutions and establisheign power called omnipotent, which does not ments it has called into existence. My conclubelong to any Legislature of the United States. sion is, that the decree of the Circuit Court of The Legislature of New Hampshire has the Ohio is erroneous, and that the judgment of same power over the charter which belonged this court should be to reverse that decree and to the King who granted it, and no more. By dismiss the bill of the plaintiff. the law of England, the power to grant corporations is a part of the royal prerogative. By the Revolution this power may be considered as having devolved on the Legislature of the State, and it has been accordingly exercised by the Legislature. But the King connot abolish a corporation, or new model it, or alter its powers, without its assent.” ***

Mr. Justice Daniel;

I concur in the preceding opinion of my brother Campbell.

Mr. Justice Catron:

sions of the opinions just read.
I also dissent, and concur with the conclu-

S. C--6 McLean, 142.

Cited-18 How., 383, 385; 23 How., 395; 1 Black.,

498;

445; 2 Black.. 545; 4 Wall., 554; 8 Wall., 73, 438; 13 Wall., 376; 16 Wall.. 229, 451; 18 Wall.. 627; 21 Wall., 5 Otto, 690; 6 Otto, 197; 1 Abb. U. S., 10, 25; 2 Abb. U. S., 330, 418; McCahon, 255; 5 Blatchf., 263; Woolw., 417:8 Blatchf., 396,401, 402; 12 Blatchf., 287, 296, 464; 1 Woods., 18, 424; 1 Sawy., 69, 70: Deady,

619.

OF WILLIAM

Chief Justice Marshall, in describing the jurisdiction of the court over such contracts, says it belongs to it "the duty of protecting from legislative violation those contracts which the Constitution of the country has placed beyond legislative control." And in defining the object and extent of the prohibition, he says: "Before the formation of the Constitution, a course of legislation had prevailed in many, if not in all the States, which weakened the con- Ex parte IN THE MATTER fidence of man in man, and embarrassed all transactions between individuals by dispensing with a faithful performance of engagements. To correct this mischief by restraining the power which produced it, the state Legislatures were forbidden to pass any law impairing the obligation of contracts; that is, of contracts respecting property under which some individual could claim a right to something beneficial to himself." These selections from opinions de- under section two of second article of the Consti

livered in this court which have carried the prerogative jurisdiction of the court to its farthest limit, and portions of which are not easily reconciled with a long series of cases subse

WELLS.

(See S. C., 18 How., 307-331.) President can grant conditional pardon-can commute sentence of death to imprisonment for life-such pardon not absolute, on ground that condition is void.

The President can grant a conditional pardon tution giving him power to grant pardons.

NOTE.--Conditional pardons,

It seems agreed that the King may extend his mercy on what terms he pleases, and may annex any condition which he thinks fit, whether preced

p. 18, Co., 3. Inst., 233; see, also, Patrick Madan's case, 1 Leach, Crown Law, 223; 4 Bl. Com., 401; 1 Chit. Cr. Law, 70, 73; Bac. Abr., Pardon, E.

This has been the construction put, all but universally, upon similar language in the constitutions of the several States.

People v. James, 2 Cai., 57; Flavell's case, 8 Watts & Serg.. 196; The State v. Smith, 1 Bailey, 283; The State v. Addington, 2 Bailey, 516; The People v. Potter, 1 Park. Cr., 47. This court has held that the President may annex conditions to a pardon.

U. S. v. Wilson, 7 Pet., 150.

By the local law applicable to the District of Columbia, special pardons are conditionally authorized.

1 Maryland Laws, 1799; 2 Stat. at L., 103, sec. 1.

Mr. Justice Wayne delivered the opinion of the court:

The petitioner was convicted of murder in the District of Columbia. and sentenced to be hung on the 23d of April, 1852. President Fillmore granted him a conditional pardon. The material part of it is as follows: "For divers good and sufficient reasons I have granted, and do hereby grant unto him, the said William Wells, a pardon of the offense of which he was convicted, upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary of Washington." On the same day the pardon was accepted in these words: "Ihere by accept the above and within pardon, with condition annexed."

that the condition annexed to the pardon, and accepted by the prisoner, is illegal. It is also said that a President granting such a pardon, assumes a power not conferred by the Constitution-that he legislates a new punishment into existence. and sentences the convict to suffer it; in this way violating the legislative and judicial powers of the government, it being the province of the first to enact laws for the punishment of offenses against the United States; and that of the judiciary, to sentence convicts for violations of those laws, according to them. It is said to be the exercise of prerogative, such as the King of England has in such cases; and that, under our system, there can be no other foundation, empowering a President of the United States to show the same clemency.

We think this is a mistake, arising from the want of due consideration of the legal meaning of the word "pardon." It is supposed that it was meant to be used exclusively with reference to an absolute pardon, exempting a criminal from the punishment which the law inflicts for a crime he has committed.

But such is not the sense or meaning of the word, either in common parlance or in law. In the first, it is forgiveness, release, remission. Forgiveness for an offense, whether it be one for which the person committing it is liable in law or otherwise. Release from pecuniary obligation, as where it is said, I pardon you your debt. Or it is the remission of a penalty, to which one may have subjected himself by the non-performance of an undertaking or contract, or when a statutory penalty in money has been incurred, and it is remitted by a pub lic functionary having power to remit it.

In the law it has different meanings, which were as well understood when the Constitution was made as any other legal word in the Constitution now is.

An application was made by the petitioner to the Circuit Court of the District of Columbia for a writ of habeas corpus. It was rejected and is now before this court by way of appeal. Such a thing as a pardon without a desigThe 2d article of the Constitution of the nation of its kind is not known in the law. United States, section 2, contains this provis- Time out of mind, in the earliest books of the ion: "The President shall have power to English law, every pardon has its particular grant reprieves and pardons for offenses against denomination. They are general, special or the United States, except in cases of impeach-particular, conditional or absolute, statutory, ment."

not necessary in some cases, and in some grant. Under this power, the President has granted able of course. Sometimes, though, an express reprieves and pardons since the commencement pardon for one is a pardon for another, such as of the present government. Sundry provisions in approver and appellee, principal and acceshave been enacted, regulating its exercise for the sary in certain cases, or where many are indictArmy and Navy, in virtue of the constitution-ed for felony in the same indictment, because the al power of Congress to make rules and regulations for the government of the Army and Navy. No statute has ever been passed regulating it in cases of conviction by the civil authorities. In such cases the President has acted exclusively under the power as it is expressed in the Constitution.

This case raises the question, whether the President can constitutionally grant a conditional pardon to a convicted murderer, sentenced to be hung, offering to change that punishment to imprisonment for life; and if he does, and it be accepted by the convict, whether it is not binding upon him to justify a court to refuse him a writ of habeas corpus, applied for upon the ground that the pardon is absolute, and the condition of it void.

The counsel for the prisoner contends that that the pardon is valid, to remit entirely the sentence of the court for his execution, and

felony is several in all of them, and not joint, and the pardon for one of them is a pardon for all, though they may not be mentioned in it; or it discharges sureties for a fine, payable at a certain day, and the King pardons the principal; or sureties for the peace, if the principal is pardoned after forfeiture. We might mention other legal incidents of a pardon, but those mentioned are enough to illustrate the subject of pardon, and the extent or meaning of the President's power to grant reprieves and par dons. It meant that the power was to be used according to law; that is, as it had been used in England, and these States when they were colonies, not because it was a prerogative power, but as incidents of the power to pardon, particularly when the circumstances of any case disclosed such uncertainties as made it doubtful if there should have been a conviction of the criminal, or when they are such as to show

that there might be a mitigation of the punishment without lessening the obligation of vindicatory justice. Without such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy. And it was with the fullest knowledge of the law upon the subject of pardons, and the phi losophy of government in its bearing upon the Constitution, when this court instructed Chief Justice Marshall to say, in The United States v. Wilson, 7 Pet., 162: As the power has been exercised from time immemorial by the 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." We still think so, and 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 familiar with the prerogatives exercised by the Crown. Hence, when the words to grant pardons were used in the Constitution, they convey 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 impeachment.

DEC TERM,

may be brought to the bar and remanded, to
suffer the punishment to which he was origi
nally sentenced.
Abr., Pardon, E. In the case of Packer and
Cole's case, Moore, 466; Bac.
others-Canadian prisoners-5 Mees. & Wels-
by, 32, Lord Abinger decided for the court; if
the condition upon which alone the pardon was
granted be void, the pardon must also be void.
If the condition were lawful, but the prisoner
did not assent to it nor submit to be transport-
ed, he cannot have the benefit of the pardon-
or if, having assented to it, his assent be revo-
cable, we must consider him to have retracted
it by the application to be set at liberty, in
which case, he is equally unable to avail him-
self of the pardon.

limitations.
But to the power of pardoning there are
vious license, make an offense dispunishable
The King cannot, by any pre-
which is malum in se-i. e., unlawful in itself,
as being against the law of nature, or so far
against the public good as to be indictable at
common law.

against reason and the common good, and
A grant of this kind would be
therefore void (2 Hawk., ch. 37, sec. 82.) so he
cannot release a recognizance to keep the peace
with another by name, and generally with
other lieges of the King, because it is for the
benefit and safety of all his subjects (3 Inst.,
238).
popular action, can the King discharge the
Nor, after suit has been brought in a
informer's part of the penalty (3 Inst., 238);
and if the action be given to the party grieved,
the King cannot discharge the same, 3 Inst.,
237). Nor can the King pardon for a common
nuisance, because it would take away the
means of compelling a redress of it, unless it
be in a case where the fine is to the King, and
not a forfeiture to the party grieved. 2 Hawk.,
ch. 37, sec. 33; 5 Chit. Burn., 2.

strained by particular statutes.
And this power to pardon has also been re-
settlement (12 & 13 Will. III., ch. 2, Eng.),
no pardon under the great seal is pleadable to
By the Act of
an impeachment by the Commons in Parlia-
ment, but after the articles of impeachment
have been heard and determined, he may
pardon.

excepting cases of impeachment out of the The provision in our Constitution, We must then give the word the same mean-ly taken from that Statute, and is an improvepower of the President to pardon, was evidenting as prevailed here and in England at the ment upon the same. time it found a place in the Constitution. This pardon in England extend to the Habeas Corpus Nor does the power to is in conformity with the principles laid down Act (31 Car. II., c. 2), which makes it a preby this court in Cathcart v. Robinson, 5 Pet., munire to send a subject to any prison out of 264, 280; and in Flavell's case, 8 Watts & Serg., England, &c., or beyond the seas, and further 197; Attorney-General's brief. incapable of the King's pardon. There are provides that any person so offending shall be also pardons grantable as of common right, without any exercise of the King's discretion; as where a statute creating an offense, or enacting penalties for its future punishment, holds out a promise of immunity to accomplices to aid in the conviction of their associates. a right absolutely to a pardon (1 Chit. C. L., When accomplices do so voluntarily, they have 766). tion, they are promised immunity on discoverAlso, when, by the King's proclamaing their accomplices and are the means of convicting them. Rex v. Rudd, Cowp., 334;

A pardon is said by Lord Coke to be a work of mercy, whereby the King, either before attainder, sentence or conviction, or after, forgiveth any crime, offense, punishment, execution, right, title, debt or duty, temporal or ecclesiastical (3 Inst., 233). coronation oath is, And the King's to be executed in mercy.' that he will cause justice ditional, as he may extend his mercy upon It is frequently conwhat terms he pleases, and annex to his bounty a condition precedent or subsequent, on the performance of which the validity of the pardon will depend. Co. Litt., 274-276; 2 Hawkins' Ch., 36, sec. 46; 4 Black. Com., 401. And if the felon does not perform the condition of the pardon, it will be altogether void; and he 424

1 Leach, 118. But except in these cases, ac-
complices, though admitted according to the
usual phrase to be "King's evidence," have no