offences against the United States, except in cases of impeachment.'

A reprieve is simply the suspension of a sentence, by which its execution is deferred, without there being any remission or change in the substance of the punishment.

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, offence, punishment, execution, right, title, debt, or duty." He adds: "All pardons of treason or felony are to be made by the king, and in his name only, and are either general or special. All pardons, either general or special, are either by act of Parliament, or by the charter of the king."1 A pardon is frequently conditional, as the king may extend his right upon what terms he please, or annex to his bounty a condition precedent or subsequent, on the performance of which the validity of the pardon will depend.

The general language above quoted must be taken with the following limitations, which, indeed, Lord Coke expressly makes. The right, title, debt, or duty which the king may forgive, must be one due or owing to the state, and not one owing to a private person. Also, the offence must have been committed, and the liability to penalty must therefore have accrued. A permission given to a person or class of persons to commit offences, with a pardon remitting the penal conse quences thereof, would be absolutely void. The prerogative to issue such promissory pardons was once claimed by the crown; but the claim has long been abandoned It would amount to a power of dispensing with the compulsive effect of statutes, or of the law generally, which the English people have resisted with success. In the United States v. Wilson,2 Chief Justice Marshall, with his usual conciseness and clearness, gave a most admirable definition of a pardon. He says: "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed."

13 Inst. 238.

27 Pet. 150, 159.

$683. Sir William Blackstone, in the fourth Book of his Commentaries, speaks of pardons as an absolute prerogative of the crown; he falls into a rapture over the beneficent effects of this prerogative; he asserts that it is a most conclusive proof of the superlative excellence of the monarchical form of government; he leaves the impression that no one but the king can pardon. Sir William Blackstone's high Tory views are well known; his statements in regard to the crown and its powers and prerogatives, must all be taken with much allowance. Blackstone himself, in a subsequent part of his chapter on pardons, speaks of those granted by Parliament as having the greater efficacy, in that a pardon granted by the king after an attainder of felony, did not destroy the corrup tion of blood, while that granted by Parliament did; and in that a pardon granted by the king before conviction must be specially pleaded, while one granted by Parliament will be judicially noticed by the courts. This citation shows that Blackstone, notwithstanding his general declarations in regard to the prerogative of the crown, admits, as he must, and as Lord Coke expressly declares, that the British Parliament possess the same power.

§ 684. Can we argue from this state of things in England 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 tɔ 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 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."

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§ 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, condi tional, absolute, statutory, not necessary in some cases, and in 1 7 Pet. 150. 2 18 How. 307, 310, 311.

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 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 Con

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1 18 How. 314.

stitution. 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.1

§ 687. Applying these principles to the determination of the President's power, 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 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 1 4 Wall. 333, 380.