1. The Act of March 12th, 1863 (12 Stat. at Large 820), to
provide for the collection of abandoned and captured property in
insurrectionary districts within the United States, does not
confiscate, or in any case absolutely divest the property of the
original owner, even though disloyal. By the seizure, the
government constituted itself a trustee for those who were
entitled, or whom it should thereafter recognize as entitled.
2. By virtue of the act of 17th July, 1862, authorizing the
President to offer pardon on such conditions as he might think
advisable, and the proclamation of 8th December, 1863, which
promised a restoration of all rights
Page 80 U. S. 129
of property, except as to slaves, on condition that the
prescribed oath be taken and kept inviolate, the persons who had
faithfully accepted the conditions offered became entitled to the
proceeds of their property thus paid into the treasury, on
application within two years from the close of the war.
3. The repeal, by an act of 21st January, 1867 (after the war
had closed), of the act of 17th July, 1862, authorizing the
executive to offer pardon, did not alter the operation of the
pardon, or the obligation of Congress to give full effect to it if
necessary by legislation.
4. The proviso in the appropriation act of July 12th, 1870 (16
Stat. at Large 235), in substance,
"That no pardon or amnesty granted by the President shall be
admissible in evidence on the part of any claimant in the Court of
Claims as evidence in support of any claim against the United
States, or to establish the standing of any claimant in said court,
or his right to bring or maintain suit therein; and that no such
pardon or amnesty heretofore put in evidence on behalf of any
claimant in that court be considered by it, or by the appellate
court on appeal from said court, in deciding upon the claim of such
claimant, or any appeal therefrom, as any part of the proof to
sustain the claim of the claimant, or to entitle him to maintain
his action in the Court of Claims, or on appeal therefrom, . . .
but that proof of loyalty [such as the proviso goes on to mention]
shall be made irrespective of the effective of any executive
proclamation, pardon, amnesty, or other set of condonation or
oblivion. And that, in all cases where judgment shall have been
heretofore rendered in the Court of Claims in favor of any claimant
on any other proof of loyalty than such as the provision requires,
this court shall, on appeal, have no further jurisdiction of the
cause, and shall dismiss the same for want of jurisdiction;"
"And further, that whenever any pardon shall have heretofore
been granted by the President to any person bringing suit in the
Court of Claims for the proceeds of abandoned or captured property
under the act of March 12th, 1863, and such pardon shall recite, in
substance, that such person took part in the late rebellion, or was
guilty of any act of rebellion against, or disloyalty to, the
United States, and such pardon shall have been accepted, in
writing, by the person to whom the same issued, without an express
disclaimer of and protestation against such fact of guilt contained
in such acceptance, such pardon and acceptance shall be taken and
deemed in such suit in the said Court of Claims, and on appeal
therefrom, conclusive evidence that such person did take part in
and give aid and comfort to the late rebellion, and did not
maintain true allegiance or consistently adhere to the United
States, and, on proof of such pardon and acceptance, the
jurisdiction of the court in the case shall cease, and the court
shall forthwith dismiss the suit of such claimant . . ."
is in conflict with the views expressed in paragraphs 1, 2, and
3 above, and is unconstitutional and void. Its substance being that
an acceptance of a pardon without a disclaimer shall be conclusive
evidence of the acts pardoned, but shall be null and void as
evidence of rights conferred by it, both in the Court of Claims and
in this court; it invades the powers both of the judicial and of
the executive departments of the government.
Page 80 U. S. 130
This was a motion by Mr. Ackerman, Attorney General, in behalf
of the United States, to remand an appeal from the Court of Claims
which the government had taken in June, 1869, with a mandate that
the same be dismissed for want of jurisdiction as now required by
law.
The case was thus:
Congress, during the progress of the late rebellion, passed
various laws to regulate the subject of forfeiture, confiscation,
or appropriation to public use without compensation, of private
property whether real or personal of noncombatant enemies.
The first was the act of July 13th, 1861. [
Footnote 1] It made liable to seizure and
forfeiture all property passing to and fro between the loyal and
insurrectionary States, and the vessels and vehicles by which it
should be attempted to be conveyed.
So an act of August 6th, 1861, [
Footnote 2] subjected to seizure and forfeiture all
property of every kind, used or intended to be used in aiding,
abetting, or promoting the insurrection, or allowing or permitting
it to be so used.
These statutes require judicial condemnation to make the
forfeiture complete.
A more general law, and one upon which most of the seizures made
during the rebellion was founded, is the act of July 17th, 1862.
[
Footnote 3] It provides for
the punishment of treason, and specifies its disqualifications and
disabilities. In its sixth section, it provides that every person
who shall be engaged in or be aiding the rebellion, and shall not
cease and return to his allegiance within sixty days after
proclamation made by the President of the United States, shall
forfeit all his property, &c. The proclamation required by this
act was issued by the President on the 25th day of July, 1862.
[
Footnote 4] The sixty days
expired September 23d, 1862.
On the 12th of March, 1863, Congress passed another species of
act -- the one entitled "An act to provide for the
Page 80 U. S. 131
collection of abandoned property, &c., in insurrectionary
districts within the United States." The statute authorized the
Secretary of the Treasury to appoint special agents to receive and
collect all abandoned or captured property in any State or
Territory in insurrection:
Provided, That such property shall not include any kind
or description which has been used, or which was intended to be
used, for waging or carrying on war against the United States, such
as arms, ordnance, ships, steamboats, or other watercraft, and
their furniture, forage, military supplies, or munitions of
war.
The statute went on:
"And any person claiming to have been the owner of any such
abandoned or captured property may, at any time within two years
after the suppression of the rebellion, prefer his claim to the
proceeds thereof in the Court of Claims,
and on proof to the
satisfaction of said court of his ownership of said property,
of his right to the proceeds thereof, and
that he has never
given any aid or comfort to the present rebellion, to receive
the residue of such proceeds after the deduction of any purchase
money which may have been paid, together with the expense of
transportation and sale of said property, and any other lawful
expenses attending the disposition thereof."
Some other acts, amendatory of this one or relating to the Court
of Claims, required proof of the petitioner's loyalty during the
rebellion as a condition precedent to recovery.
By the already mentioned confiscation act of July 17th, 1862,
the President was authorized by proclamation to extend to persons
who had participated in rebellion pardon and amnesty, with such
exceptions, and at such times, and on such conditions as he should
deem expedient for the public welfare.
And on the 8th of December, 1863, he did issue his proclamation,
reciting the act, and that certain persons who had been engaged in
the rebellion desired to resume their allegiance and reinaugurate
loyal State governments within and for their respective States. And
thereupon proclaimed
Page 80 U. S. 132
that a full pardon should be thereby granted to them, with
restoration of all rights of property, except as to slaves, and in
property cases where rights of third parties shall have intervened,
and upon condition that every such person shall take and subscribe
a prescribed oath of allegiance, and thenceforward keep and
maintain said oath inviolate, &c.
Under this proclamation, V. F. Wilson, who during the rebellion
had voluntarily become the surety on the official bonds of certain
officers of the rebel confederacy, and so given aid and comfort, to
it, took, February 15th, 1864, this oath of allegiance, and had
kept the same inviolate.
He himself having died in 1865, one Klein, his administrator,
filed a petition in the Court of Claims, setting forth Wilson's
ownership of certain cotton which he had abandoned to the treasury
agents of the United States, and which they had sold, putting the
proceeds into the Treasury of the United States, where they now
were, and from which the petitioner sought to obtain them. This
petition was filed December 26th, 1865.
The section of the act of 1862, by which the President was
authorized to extend pardon and amnesty on such conditions as he
should deem expedient for the public welfare, was repealed on the
21st of January, 1867. [
Footnote
5]
The Court of Claims, on the 26th May, 1869, decided that Wilson
had been entitled to receive the proceeds of his cotton, and
decreed $125,300 to Klein, the administrator of his estate. An
appeal was taken by the United States June 3d, following, and filed
in this court on the 11th December, of the same year.
Previously to this case of Klein's, the Court of Claims had had
before it the case of one Padelford, quite like this one, for there
also the claimant, who had abandoned his cotton and now claimed its
proceeds, having participated in the rebellion, had taken the
amnesty oath. The Court of Claims held that the oath cured his
participation in the rebellion,
Page 80 U. S. 133
and so it gave him a decree for the proceeds of his cotton in
the treasury. The United States brought that case here by appeal,
[
Footnote 6] and the decree of
the Court of Claims was affirmed, this court declaring that,
although Padelford had participated in the rebellion, yet, that
having been pardoned, he was as innocent in law as though he had
never participated, and that his property was purged of whatever
offence he had committed and relieved from any penalty that he
might have incurred. The judgment of this court to the effect above
mentioned was publicly announced on the 30th of April, 1870.
Soon after this -- the bill making appropriations for the
legislative, executive, and judicial expenses of the government for
the year 1870-71 then pending in Congress -- the following was
introduced as a proviso to an appropriation of $100,000, in the
first section, for the payment of judgments in the Court of Claims,
and, with this proviso in it, the bill became a law July 12th,
1870: [
Footnote 7]
"
Provided, That no pardon or amnesty granted by the
President, whether general or special, by proclamation or
otherwise, nor any acceptance of such pardon or amnesty, nor oath
taken, or other act performed in pursuance or as a condition
thereof shall be admissible in evidence on the part of any claimant
in the Court of Claims as evidence in support of any claim against
the United States, or to establish the standing of any claimant in
said court, or his right to bring or maintain suit therein; nor
shall any such pardon, amnesty, acceptance, oath, or other act as
aforesaid, heretofore offered or put in evidence on behalf of any
claimant in said court, be used or considered by said court, or by
the appellate court on appeal from said court, in deciding upon the
claim of said claimant, or any appeal therefrom, as any part of the
proof to sustain the claim of the claimant, or to entitle him to
maintain his action in said Court of Claims, or on appeal
therefrom; but the proof of loyalty required by the Abandoned and
Captured Property Act, and by the sections of several acts quoted,
shall be made by proof of the matters required,
Page 80 U. S. 134
irrespective of the effect of any executive proclamation,
pardon, amnesty, or other act of condonation or oblivion. And in
all cases where judgment shall have been heretofore rendered in the
Court of Claims in favor of any claimant, on any other proof of
loyalty than such as is above required and provided, and which is
hereby declared to have been and to be the true intent and meaning
of said respective acts, the Supreme Court shall, on appeal, have
no further jurisdiction of the cause, and shall dismiss the same
for want of jurisdiction."
"
And provided further, That whenever any pardon shall
have heretofore been granted by the President of the United States
to any person bringing suit in the Court of Claims for the proceeds
of abandoned or captured property under the said act, approved 12th
March, 1863, and the acts amendatory of the same, and such pardon
shall recite in substance that such person took part in the late
rebellion against the government of the United States, or was
guilty of any act of rebellion against, or disloyalty to, the
United States; and such pardon shall have been accepted in writing
by the person to whom the same issued without an express disclaimer
of, and protestation against, such fact of guilt contained in such
acceptance, such pardon and acceptance shall be taken and deemed in
such suit in the said Court of Claims, and on appeal therefrom,
conclusive evidence that such person did take part in, and give aid
and comfort to, the late rebellion, and did not maintain true
allegiance or consistently adhere to the United States; and on
proof of such pardon and acceptance, which proof may be heard
summarily on motion or otherwise, the jurisdiction of the court in
the case shall cease, and the court shall forthwith dismiss the
suit of such claimant."
The motion already mentioned, of the Attorney General, that the
case be remanded to the Court of Claims with a mandate that the
same be dismissed for want of jurisdiction, as now required by law,
was, of course, founded on this enactment in the appropriation bill
of July 12th, 1870.
Page 80 U. S. 136
The CHIEF JUSTICE delivered the opinion of the court.
The general question in this case is whether or not the proviso
relating to suits for the proceeds of abandoned and captured
property in the Court of Claims, contained in the appropriation act
of July 12th, 1870, debars the defendant in error from recovering,
as administrator of V. F. Wilson, deceased, the proceeds of certain
cotton belonging to the decedent which came into the possession of
the agents of the Treasury Department as captured or abandoned
property, and the proceeds of which were paid by them according to
law into the Treasury of the United States.
The answer to this question requires a consideration of the
rights of property, as affected by the late civil war, in the hands
of citizens engaged in hostilities against the United States.
It may be said in general terms that property in the insurgent
States may be distributed into four classes:
1st. That which belonged to the hostile organizations or was
employed in actual hostilities on land.
2d. That which at sea became lawful subject of capture and
prize.
3d. That which became the subject of confiscation.
4th. A peculiar description, known only in the recent war,
called captured and abandoned property.
The first of these descriptions of property, like property of
other like kind in ordinary international wars, became, wherever
taken,
ipso facto, the property of the United States.
[
Footnote 8]
The second of these descriptions comprehends ships and vessels
with their cargoes belonging to the insurgents or
Page 80 U. S. 137
employed in aid of them, but property in these was not changed
by capture alone, but by regular judicial proceeding and
sentence.
Accordingly, it was provided in the Abandoned and Captured
Property Act of March 12th, 1863, [
Footnote 9] that the property to be collected under it
"shall not include any kind or description used or intended to
be used for carrying on war against the United States, such as
arms, ordnance, ships, steamboats and their furniture, forage,
military supplies, or munitions of war."
Almost all the property of the people in the insurgent States
was included in the third description, for after sixty days from
the date of the President's proclamation of July 25th, 1862,
[
Footnote 10] all the
estates and property of those who did not cease to aid,
countenance, and abet the rebellion became liable to seizure and
confiscation, and it was made the duty of the President to cause
the same to be seized and applied, either specifically or in the
proceeds thereof, to the support of the army. [
Footnote 11] But it is to be observed that
tribunals and proceedings were provided by which alone such
property could be condemned, and without which it remained
unaffected in the possession of the proprietors.
It is thus seen that, except to property used in actual
hostilities, as mentioned in the first section of the act of March
12th, 1863, no titles were divested in the insurgent States unless
in pursuance of a judgment rendered after due legal proceedings.
The government recognized to the fullest extent the humane maxims
of the modern law of nations, which exempt private property of
noncombatant enemies from capture as booty of war. Even the law of
confiscation was sparingly applied. The cases were few indeed in
which the property of any not engaged in actual hostilities was
subjected to seizure and sale.
The spirit which animated the government received special
illustration from the act under which the present case arose. We
have called the property taken into the custody
Page 80 U. S. 138
of public officers under that act a peculiar species, and it was
so. There is, so far as we are aware, no similar legislation
mentioned in history.
The act directs the officers of the Treasury Department to take
into their possession and make sale of all property abandoned by
its owners or captured by the national forces, and to pay the
proceeds into the national treasury.
That it was not the intention of Congress that the title to
these proceeds should be divested absolutely out of the original
owners of the property seems clear upon a comparison of different
parts of the act.
We have already seen that those articles which became by the
simple fact of capture the property of the captor, as ordnance,
munitions of war, and the like, or in which third parties acquired
rights which might be made absolute by decree, as ships and other
vessels captured as prize, were expressly excepted from the
operation of the act; and it is reasonable to infer that it was the
purpose of Congress that the proceeds of the property for which the
special provision of the act was made should go into the treasury
without change of ownership. Certainly such was the intention in
respect to the property of loyal men. That the same intention
prevailed in regard to the property of owners who, though then
hostile, might subsequently become loyal, appears probable from the
circumstance that no provision is anywhere made for confiscation of
it, while there is no trace in the statute book of intention to
divest ownership of private property not excepted from the effect
of this act otherwise than by proceedings for confiscation.
In the case of Padelford, we held that the right to the
possession of private property was not changed until actual seizure
by proper military authority, and that actual seizure by such
authority did not divest the title under the provisions of the
Abandoned and Captured Property Act. The reasons assigned seem
fully to warrant the conclusion. The government constituted itself
the trustee for those who were by that act declared entitled to the
proceeds of captured and abandoned property, and for those whom it
should thereafter
Page 80 U. S. 139
recognize as entitled. By the act itself, it was provided that
any person claiming to have been the owner of such property might
prefer his claim to the proceeds thereof, and, on proof that he had
never given aid or comfort to the rebellion, receive the amount
after deducting expenses.
This language makes the right to the remedy dependent upon proof
of loyalty, but implies that there may be proof of ownership
without proof of loyalty. The property of the original owner is in
no case absolutely divested. There is, as we have already observed,
no confiscation, but the proceeds of the property have passed into
the possession of the government, and restoration of the property
is pledged to none except to those who have continually adhered to
the government. Whether restoration will be made to others, or
confiscation will be enforced, is left to be determined by
considerations of public policy subsequently to be developed.
It is to be observed, however, that the Abandoned and Captured
Property Act was approved on the 12th of March, 1863, and on the
17th of July, 1862, Congress had already passed an act -- the same
which provided for confiscation -- which authorized the
President,
"at any time hereafter, by proclamation, to extend to persons
who may have participated in the existing rebellion, in any State
or part thereof, pardon and amnesty, with such exceptions and at
such time and on such conditions as he may deem expedient for the
public welfare."
The act of the 12th of March, 1863, provided for the sale of
enemies' property collected under the act, and payment of the
proceeds into the treasury, and left them there subject to such
action as the President might take under the act of the 17th of
July, 1862. What was this action?
The suggestion of pardon by Congress, for such it was, rather
than authority, remained unacted on for more than a year. At
length, however, on the 8th of December, 1863, [
Footnote 12] the President issued a
proclamation in which he referred to that act and offered a full
pardon, with restoration of all
Page 80 U. S. 140
rights of property, except as to slaves and property in which
rights of third persons had intervened, to all, with some
exceptions, who, having been engaged in the rebellion as actual
participants, or as aiders or abettors, would take and keep
inviolate a prescribed oath. By this oath, the person seeking to
avail himself of the offered pardon was required to promise that he
would thenceforth support the Constitution of the United States and
the union of the States thereunder, and would also abide by and
support all acts of Congress and all proclamations of the President
in reference to slaves, unless the same should be modified or
rendered void by the decision of this court.
In his annual message, transmitted to Congress on the same day,
the President said "the Constitution authorizes the Executive to
grant or withhold pardon at his own absolute discretion." He
asserted his power "to grant it on terms as fully established," and
explained the reasons which induced him to require applicants for
pardon and restoration of property to take the oath prescribed, in
these words:
"Laws and proclamations were enacted and put forth for the
purpose of aiding in the suppression of the rebellion. To give them
their fullest effect, there had to be a pledge for their
maintenance. In my judgment, they have aided, and will further aid,
the cause for which they were intended. To now abandon them would
not only be to relinquish a lever of power, but would also be a
cruel and astounding breach of faith. . . . For these and other
reasons, it is thought best that support of these measures shall be
included in the oath, and it is believed the Executive may lawfully
claim it in return for pardon and restoration of forfeited rights,
which he has clear constitutional power to withhold altogether or
grant upon the terms which he shall deem wisest for the public
interest."
The proclamation of pardon, by a qualifying proclamation issued
on the 26th of March, 1864, [
Footnote 13] was limited to those persons only who, being
yet at large and free from confinement
Page 80 U. S. 141
or duress, shall voluntarily come forward and take the said oath
with the purpose of restoring peace and establishing the national
authority.
On the 29th of May, 1865, [
Footnote 14] amnesty and pardon, with the restoration of
the rights of property except as to slaves, and that as to which
legal proceedings had been instituted under laws of the United
States, were again offered to all who had, directly or indirectly,
participated in the rebellion, except certain persons included in
fourteen classes. All who embraced this offer were required to take
and subscribe an oath of like tenor with that required by the first
proclamation.
On the 7th of September, 1867, [
Footnote 15] still another proclamation was issued,
offering pardon and amnesty, with restoration of property, as
before and on the same oath, to all but three excepted classes.
And finally, on the 4th of July, 1868, [
Footnote 16] a full pardon and amnesty was
granted, with some exceptions, and on the 25th of December, 1868,
[
Footnote 17] without
exception, unconditionally and without reservation, to all who had
participated in the rebellion, with restoration of rights of
property as before. No oath was required.
It is true that the section of the act of Congress which
purported to authorize the proclamation of pardon and amnesty by
the President was repealed on the 21st of January, 1867, but this
was after the close of the war, when the act had ceased to be
important as an expression of the legislative disposition to carry
into effect the clemency of the Executive, and after the decision
of this court that the President's power of pardon "is not subject
to legislation;" that "Congress can neither limit the effect of his
pardon, nor exclude from its exercise any class of offenders."
[
Footnote 18] It is not
important, therefore, to refer to this repealing act further than
to say that it is impossible to believe, while the repealed
provision was in full force, and the faith of the legislature
Page 80 U. S. 142
as well as the Executive was engaged to the restoration of the
rights of property promised by the latter, that the proceeds of
property of persons pardoned, which had been paid into the
treasury, were to be withheld from them. The repeal of the section
in no respect changes the national obligation, for it does not
alter at all the operation of the pardon, or reduce in any degree
the obligations of Congress under the Constitution to give full
effect to it, if necessary, by legislation.
We conclude, therefore, that the title to the proceeds of the
property which came to the possession of the government by capture
or abandonment, with the exceptions already noticed, was in no case
divested out of the original owner. It was for the government
itself to determine whether these proceeds should be restored to
the owner or not. The promise of the restoration of all rights of
property decides that question affirmatively as to all persons who
availed themselves of the proffered pardon. It was competent for
the President to annex to his offer of pardon any conditions or
qualifications he should see fit; but after those conditions and
qualifications had been satisfied, the pardon and its connected
promises took full effect. The restoration of the proceeds became
the absolute right of the persons pardoned, on application within
two years from the close of the war. It was, in fact, promised for
an equivalent. "Pardon and restoration of political rights" were
"in return" for the oath and its fulfillment. To refuse it would be
a breach of faith not less "cruel and astounding" than to abandon
the freed people whom the Executive had promised to maintain in
their freedom.
What, then, was the effect of the provision of the act of 1870
[
Footnote 19] upon the right
of the owner of the cotton in this case? He had done certain acts
which this court [
Footnote
20] has adjudged to be acts in aid of the rebellion, but he
abandoned the cotton to the agent of the Treasury Department, by
whom it has been sold and the proceeds paid into the Treasury of
the
Page 80 U. S. 143
United States; and he took, and has not violated, the amnesty
oath under the President's proclamation. Upon this case, the Court
of Claims pronounced him entitled to a judgment for the net
proceeds in the treasury. This decree was rendered on the 26th of
May, 1869; the appeal to this court made on the 3d of June, and was
filed here on the 11th of December, 1869.
The judgment of the court in the case of Padelford, which, in
its essential features, was the same with this case, was rendered
on the 30th of April, 1870. It affirmed the judgment of the Court
of Claims in his favor.
Soon afterwards, the provision in question was introduced as a
proviso to the clause in the general appropriation bill
appropriating a sum of money for the payment of judgments of the
Court of Claims, and became a part of the act, with perhaps little
consideration in either House of Congress.
This proviso declares in substance that no pardon, acceptance,
oath, or other act performed in pursuance, or as a condition of
pardon shall be admissible in evidence in support of any claim
against the United States in the Court of Claims, or to establish
the right of any claimant to bring suit in that court; nor, if
already put in evidence, shall be used or considered on behalf of
the claimant, by said court, or by the appellate court on appeal.
Proof of loyalty is required to be made according to the provisions
of certain statutes, irrespective of the effect of any executive
proclamation, pardon, or amnesty, or act of oblivion; and when
judgment has been already rendered on other proof of loyalty, the
Supreme Court, on appeal, shall have no further jurisdiction of the
cause, and shall dismiss the same for want of jurisdiction. It is
further provided that whenever any pardon, granted to any suitor in
the Court of Claims, for the proceeds of captured and abandoned
property, shall recite in substance that the person pardoned took
part in the late rebellion, or was guilty of any act of rebellion
or disloyalty, and shall have been accepted in writing without
express disclaimer and protestation against the fact so recited,
such pardon or acceptance shall be taken as conclusive evidence
Page 80 U. S. 144
in the Court of Claims, and on appeal, that the claimant did
give aid to the rebellion, and, on proof of such pardon or
acceptance, which proof may be made summarily on motion or
otherwise, the jurisdiction of the court shall cease, and the suit
shall be forthwith dismissed.
The substance of this enactment is that an acceptance of a
pardon without disclaimer shall be conclusive evidence of the acts
pardoned, but shall be null and void as evidence of the rights
conferred by it, both in the Court of Claims and in this court on
appeal.
It was urged in argument that the right to sue the government in
the Court of Claims is a matter of favor, but this seems not
entirely accurate. It is as much the duty of the government as of
individuals to fulfil its obligations. Before the establishment of
the Court of Claims, claimants could only be heard by Congress.
That court was established in 1855 [
Footnote 21] for the triple purpose of relieving
Congress, and of protecting the government by regular
investigation, and of benefiting the claimants by affording them a
certain mode of examining and adjudicating upon their claims. It
was required to hear and determine upon claims founded upon any law
of Congress, or upon any regulation of an executive department, or
upon any contract, express or implied, with the government of the
United States. [
Footnote 22]
Originally it was a court merely in name, for its power extended
only to the preparation of bills to be submitted to Congress.
In 1863, the number of judges was increased from three to five,
its jurisdiction was enlarged, and, instead of being required to
prepare bills for Congress, it was authorized to render final
judgment, subject to appeal to this court and to an estimate by the
Secretary of the Treasury of the amount required to pay each
claimant. [
Footnote 23] This
court being of opinion [
Footnote
24] that the provision for an estimate was inconsistent with
the finality essential to judicial decisions, Congress repealed
that provision. [
Footnote
25] Since then, the Court of Claims has exercised
Page 80 U. S. 145
all the functions of a court, and this court has taken full
jurisdiction on appeal. [
Footnote 26]
The Court of Claims is thus constituted one of those inferior
courts which Congress authorizes, and has jurisdiction of contracts
between the government and the citizen, from which appeal regularly
lies to this court.
Undoubtedly the legislature has complete control over the
organization and existence of that court, and may confer or
withhold the right of appeal from its decisions. And if this act
did nothing more, it would be our duty to give it effect. If it
simply denied the right of appeal in a particular class of cases,
there could be no doubt that it must be regarded as an exercise of
the power of Congress to make "such exceptions from the appellate
jurisdiction" as should seem to it expedient.
But the language of the proviso shows plainly that it does not
intend to withhold appellate jurisdiction except as a means to an
end. Its great and controlling purpose is to deny to pardons
granted by the President the effect which this court had adjudged
them to have. The proviso declares that pardons shall not be
considered by this court on appeal. We had already decided that it
was our duty to consider them and give them effect, in cases like
the present, as equivalent to proof of loyalty. It provides that,
whenever it shall appear that any judgment of the Court of Claims
shall have been founded on such pardons, without other proof of
loyalty, the Supreme Court shall have no further jurisdiction of
the case, and shall dismiss the same for want of jurisdiction. The
proviso further declares that every pardon granted to any suitor in
the Court of Claims and reciting that the person pardoned has been
guilty of any act of rebellion or disloyalty shall, if accepted in
writing without disclaimer of the fact recited, be taken as
conclusive evidence in that court and on appeal of the act recited,
and, on proof of pardon or acceptance, summarily made on motion
Page 80 U. S. 146
or otherwise, the jurisdiction of the court shall cease and the
suit shall be forthwith dismissed.
It is evident from this statement that the denial of
jurisdiction to this court, as well as to the Court of Claims, is
founded solely on the application of a rule of decision, in causes
pending, prescribed by Congress. The court has jurisdiction of the
cause to a given point, but when it ascertains that a certain state
of things exists, its jurisdiction is to cease and it is required
to dismiss the cause for want of jurisdiction.
It seems to us that this is not an exercise of the acknowledged
power of Congress to make exceptions and prescribe regulations to
the appellate power.
The court is required to ascertain the existence of certain
facts, and thereupon to declare that its jurisdiction on appeal has
ceased by dismissing the bill. What is this but to prescribe a rule
for the decision of a cause in a particular way? In the case before
us, the Court of Claims has rendered judgment for the claimant, and
an appeal has been taken to this court. We are directed to dismiss
the appeal if we find that the judgment must be affirmed because of
a pardon granted to the intestate of the claimants. Can we do so
without allowing one party to the controversy to decide it in its
own favor? Can we do so without allowing that the legislature may
prescribe rules of decision to the Judicial Department of the
government in cases pending before it?
We think not, and, thus thinking, we do not at all question what
was decided in the case of
Pennsylvania v. Wheeling Bridge
Company. [
Footnote 27]
In that case, after a decree in this court that the bridge, in the
then state of the law, was a nuisance, and must be abated as such,
Congress passed an act legalizing the structure and making it a
post-road, and the court, on a motion for process to enforce the
decree, held that the bridge had ceased to be a nuisance by the
exercise of the constitutional powers of Congress, and denied the
motion. No arbitrary rule of decision was prescribed in that
case,
Page 80 U. S. 147
but the court was left to apply its ordinary rules to the new
circumstances created by the act. In the case before us, no new
circumstances have been created by legislation. But the court is
forbidden to give the effect to evidence which, in its own
judgment, such evidence should have, and is directed to give it an
effect precisely contrary.
We must think that Congress has inadvertently passed the limit
which separates the legislative from the judicial power.
It is of vital importance that these powers be kept distinct.
The Constitution provides that the judicial power of the United
States shall be vested in one Supreme Court and such inferior
courts as the Congress shall from time to time ordain and
establish. The same instrument, in the last clause of the same
article, provides that, in all cases other than those of original
jurisdiction,
"the Supreme Court shall have appellate jurisdiction both as to
law and fact, with such exceptions and under such regulations as
the Congress shall make."
Congress has already provided that the Supreme Court shall have
jurisdiction of the judgments of the Court of Claims on appeal. Can
it prescribe a rule in conformity with which the court must deny to
itself the jurisdiction thus conferred, because and only because
its decision, in accordance with settled law, must be adverse to
the government and favorable to the suitor? This question seems to
us to answer itself.
The rule prescribed is also liable to just exception as
impairing the effect of a pardon, and thus infringing the
constitutional power of the Executive.
It is the intention of the Constitution that each of the great
coordinate departments of the government -- the Legislative, the
Executive, and the Judicial -- shall be, in its sphere, independent
of the others. To the executive alone is intrusted the power of
pardon; and it is granted without limit. Pardon includes amnesty.
It blots out the offence pardoned, and removes all its penal
consequences. It may be granted on conditions. In these particular
pardons,
Page 80 U. S. 148
that no doubt might exist as to their character, restoration of
property was expressly pledged, and the pardon was granted on
condition that the person who availed himself of it should take and
keep a prescribed oath.
Now it is clear that the legislature cannot change the effect of
such a pardon any more than the executive can change a law. Yet
this is attempted by the provision under consideration. The court
is required to receive special pardons as evidence of guilt, and to
treat them as null and void. It is required to disregard pardons
granted by proclamation on condition, though the condition has been
fulfilled, and to deny them their legal effect. This certainly
impairs the executive authority, and directs the court to be
instrumental to that end.
We think it unnecessary to enlarge. The simplest statement is
the best.
We repeat that it is impossible to believe that this provision
was not inserted in the appropriation bill through inadvertence,
and that we shall not best fulfill the deliberate will of the
legislature by DENYING the motion to dismiss and AFFIRMING the
judgment of the Court of Claims; which is
ACCORDINGLY DONE.
[
Footnote 1]
12 Stat. at Large 257.
[
Footnote 2]
Ib. 319.
[
Footnote 3]
Ib. 589.
[
Footnote 4]
Id. 1266.
[
Footnote 5]
14 Stat. at Large 377.
[
Footnote 6]
United States v.
Padelford, 9 Wallace 531.
[
Footnote 7]
16 Stat. at Large 235.
[
Footnote 8]
Halleck's International Law.
[
Footnote 9]
12 Stat. at Large 820.
[
Footnote 10]
Ib. 1266.
[
Footnote 11]
Ib. 590.
[
Footnote 12]
13 Stat. at Large 737.
[
Footnote 13]
13 Stat. at Large 741.
[
Footnote 14]
13 Stat. at Large 758.
[
Footnote 15]
15
Id. 699.
[
Footnote 16]
Ib. 702.
[
Footnote 17]
Ib. 711.
[
Footnote 18]
14th January, 1867.
[
Footnote 19]
16 Stat. at Large 235.
[
Footnote 20]
United States v.
Padelford, 9 Wallace 531.
[
Footnote 21]
10 Stat. at Large 612.
[
Footnote 22]
Ib.
[
Footnote 23]
12
Ib. 765.
[
Footnote 24]
69 U. S. 2 Wallace
561.
[
Footnote 25]
14 Stat. at Large 9.
[
Footnote 26]
14 Stat. at Large 44, 391, 444.
[
Footnote 27]
59 U. S. 18
Howard 429.
Mr. Justice MILLER (with whom concurred Mr. Justice BRADLEY),
dissenting.
I cannot agree to the opinion of the court just delivered in an
important matter, and I regret this the more because I do agree to
the proposition that the proviso to the act of July 12th, 1870, is
unconstitutional so far as it attempts to prescribe to the
judiciary the effect to be given to an act of pardon or amnesty by
the President. This power of pardon is confided to the President by
the Constitution, and whatever may be its extent or its limits, the
legislative branch of the government cannot impair its force or
effect in a judicial proceeding in a constitutional court. But I
have not been able to bring my mind to concur in the proposition
that, under the act concerning captured and abandoned property,
there remains in the former owner, who had given aid and
Page 80 U. S. 149
comfort to the rebellion, any interest whatever in the property
or its proceeds when it had been sold and paid into the treasury or
had been converted to the use of the public under that act. I must
construe this act, as all others should be construed, by seeking
the intention of its framers, and the intention to restore the
proceeds of such property to the loyal citizen, and to transfer it
absolutely to the government in the case of those who had given
active support to the rebellion, is, to me, too apparent to be
disregarded. In the one case, the government is converted into a
trustee for the former owner; in the other, it appropriates it to
its own use as the property of a public enemy captured in war. Can
it be inferred from anything found in the statute that Congress
intended that this property should ever be restored to the
disloyal? I am unable to discern any such intent. But if it did,
why was not some provision made by which the title of the
government could at some time be made perfect, or that of the owner
established? Some judicial proceeding for confiscation would seem
to be necessary if there remains in the disloyal owner any right or
interest whatever. But there is no such provision, and unless the
act intended to forfeit absolutely the right of the disloyal owner,
the proceeds remain in a condition where the owner cannot maintain
a suit for its recovery, and the United States can obtain no
perfect title to it.
This statute has recently received the attentive consideration
of the court in two reported cases.
In the case of the
United States v. Anderson, [
Footnote 2/1] in reference to the relation
of the government to the money paid into the treasury under this
act, and the difference between the property of the loyal and
disloyal owner, the court uses language hardly consistent with the
opinion just read. It says that Congress, in a spirit of
liberality, constituted the government a trustee for so much of
this property as belonged to the faithful Southern people, and
while it directed that all of it should be sold and its proceeds
paid into the treasury, gave to this class of persons an
opportunity to establish
Page 80 U. S. 150
their right to the proceeds. Again, it is said that
"the measure, in itself of great beneficence, was practically
important only in its application to the loyal Southern people, and
sympathy for their situation doubtless prompted Congress to pass
it."
These views had the unanimous concurrence of the court. If I
understand the present opinion, however, it maintains that the
government, in taking possession of this property and selling it,
became the trustee of all the former owners, whether loyal or
disloyal, and holds it for the latter until pardoned by the
President, or until Congress orders it to be restored to him.
The other case which I refer to is that of
United States v.
Padelford. [
Footnote 2/2] In
that case, the opinion makes a labored and successful effort to
show that Padelford, the owner of the property, had secured the
benefit of the amnesty proclamation before the property was seized
under the same statute we are now considering. And it bases the
right of Padelford to recover its proceeds in the treasury on the
fact that before the capture his status as a loyal citizen had been
restored, and with it all his rights of property, although he had
previously given aid and comfort to the rebellion. In this view, I
concurred with all my brethren. And I hold now that, as long as the
possession or title of property remains in the party, the pardon or
the amnesty remits all right in the government to forfeit or
confiscate it. But where the property has already been seized and
sold, and the proceeds paid into the treasury, and it is clear that
the statute contemplates no further proceeding as necessary to
divest the right of the former owner, the pardon does not and
cannot restore that which has thus completely passed away. And if
such was not the view of the court when Padelford's case was under
consideration, I am at a loss to discover a reason for the extended
argument in that case, in the opinion of the court, to show that he
had availed himself of the amnesty before the seizure of the
property. If the views now advanced are sound, it was wholly
immaterial whether Padelford was pardoned before or after the
seizure.
[
Footnote 2/1]
76 U. S. 9
Wallace 65.
[
Footnote 2/2]
76 U. S. 9 Wallace
531.
