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distinguished members of the Supreme Court of the United States, taking different grounds as to the import of the decision in Pratt v. Read, it may be said the question is still an open one. We feel bound to follow the ruling of Judge Swayne; besides, our own judgment is that such is the correct view."
The case will be found reported in full in the Chicago Legal News for June 12, 1869.
High Court Of Errors And Appeals. — Cassell v. Bachrach. This was a case of novel impression. On June 17, 1864, two bales of cotton belonging to the defendant were sold in Madison county for a tax due to the Confederate government. The sale was regular in all respects, and the cotton was bought by the plaintiff, and the price paid by him to the sheriff. This was a suit to obtain the value of the cotton which the defendant had detained from the plaintiff. The court held that the title acquired by the tax sale was good, and ordered a verdict set aside, which had been rendered for the defendant under an instruction to the jury that the tax sale conferred no title.
The Pratt Case. —The Osborne-McCunn imbroglio in New York has happily . reached a peaceful conclusion, and, much to everybody's relief, has been settled without an appeal to force. The natural hesitation which each of the disputants felt in actually employing that force which they so lavishly threatened, has saved the country from a collision which might have had disastrous effects. As it was, the battle of the jurisdictions was a drawn one, and, like the war of 1812, the victory was claimed by both parties; but the question has now reached a point, wherein an authoritative decision is absolutely necessary to enable us to avoid, for the future, such a crisis as the one we have just now escaped.
The facts are briefly these: A certain Major J. H. Pratt, of Texas, late of the Confederate army, was accused of having committed the crime of murder in that State, at the town of Jefferson, in 1868, but succeeded in escaping the sheriff in pursuit of him, and appeared in the city of New York, where he was recognized in the month of July last, and on a complaint, made under oath July 31, 1869, charging him with the commission of the crimes of murder and treason, he was arrested under a warrant issued by United States Commissioner Osborne, and was brought before him on the sixth of August for examination. Before this examination was concluded, a writ of habeas corpus was issued by Judge McCunn of the Superior Court, of the City of New York, and Marshal Barlow, by whom the arrest had been made, took his prisoner before Judge McCunn, who ordered his discharge from custody on the following grounds: 1st. That the United States government has no jurisdiction of the crime of murder, except in certain specified cases, and there was nothing in the warrant to show that this was one of those cases, and therefore it was a crime of which the courts of the State of Texas had exclusive jurisdiction; 2d. Under the Reconstruction Acts, an offence committed in Texas is an offence against the military law, of which a commissioner, being an officer of a civil court, cannot take jurisdiction; he cannot commit for a crime not cognizable by a civil court; 3d. The commitment states no act, of which the crime of treason may be predicated, and is therefore, so far, fatally defective. In support of these views, the judge quoted In re Martin, 45 Barb. 143, Judge Nelson's decision In re Egan, 5 Blatehford, C. C. 319, and U. S. v. Hand, 6 McLean, 274; and while denying any intention of encroaching upon the jurisdiction of the United States, he still declared that he felt it his duty to discharge the prisoner from the custody of the marshal, which he thereupon ordered to bo done. Marshal Barlow, however, took quite a different view of the matter, and carried back Pratt to Fort Schuyler, refusing to discharge him. He justified this refusal on the ground that a State officer had not the power to compel him, a United States officer, to discharge the prisoner, and relied on Judge Taney's decision in Ableman v. Booth, 21 How. 506. Judge McCunn, hereupon, considered the dignity of the State to be insulted, and threatened to prepare, and did actually prepare, though he did not issue it, a warrant to arrest Barlow for contempt of court, whereupon the latter telegraphed to the President for instructions, who ordered him to resist the warrant if issued, and to employ force, if necessary, to carry out his orders. In pursuance of this order, Barlow surrounded himself with soldiers, and, bristling with bayonets, carried Pratt before United States Commissioner Osborne on the sixteenth August, to complete the examination which had been begun by him before the writ of habeas corpus was issued. The prisoner's counsel refused to appear, or to make any motion, on the ground that their client was "legally at liberty," which the commissioner denied, and the District Attorney then proceeded to open the case for the Government. He held that it was clearly the duty of Judge McCunn to have remanded the prisoner to the custody of the Government on the writ of habeas corpus, and while • disclaiming the idea that Judge McCunn had intended to bring about a conflict of jurisdiction, he thought he had unintentionally stepped over the line. He held that, by the law of the United States, the commissioner alone had jurisdiction, that no one else had the power to order a discharge; and, therefore, the dismissal of Pratt was illegal. Commissioner Osborne held that the evidence was insufficient to support the warrant, and he therefore ordered the discharge of the prisoner.
Pratt was then discharged, and the matter ended happily here. It was fortunately Vox el praderea nihil. Something should be done, however, to avoid any such danger for the future.
United States District Court For The Southern District Of New York.—In re Moses De Puy. Moses De Puy was tried in the United States District Court for violating the revenue law, on an indictment containing two counts; he was convicted on both counts, and on Feb. 15, 1869, sentenced "on the first count, to be imprisoned at Blackwell's Island for the term of six months, and to pay a fine of one dollar, and stand committed until paid; and, on the second count, to be imprisoned at Blackwell's Island for the term of six months, and pay a fine of one dollar, and stand committed until paid, — this sentence to commence on the termination of the first." One Jacob De Puy was also sentenced at the same time. The marshal delivered De Puy into the custody of the keeper of the Blackwell's Island Penitentiary. Afterwards, one Nelson applied to President Johnson on behalf of De Puy, for a pardon, and the President directed the pardon to be made out. The warrant of pardon was signed by the President, and countersigned by the Secretary of State; it was sealed with the great seal of the United States, and was sent from the Department of State to the United States Marshal in New York by mail, and was received by him on the 5th of March. The pardon was dated on the 3d of March, and the letter accompanying the pardon was also dated on the 3d of March, and was addressed to the marshal, and ran as follows: "Sir, — I transmit herewith the President's warrant for the conditional pardon of Moses De Puy, the receipt of which you will please acknowledge. I am, &c., F. W. Seward." The pardon was conditional on the payment of the fine, and this condition De Puy performed. It appeared that Nelson applied at the Department of State, and asked to be permitted to take the pardon, but he was told that it must be sent to the marshal, and that was the usual course in such cases. .
On March 6th, in pursuance of a verbal order of President Grant, the Secretary of State telegraphed to the marshal that if De Puy had not been released, the marshal would regard his pardon as cancelled, and return the same to the Department; on the receipt of this telegraphic despatch, the marshal sent back the pardon, which was still in his hands, to the State Department, and the President afterwards signed an order stating that whereas the pardon had not been delivered to, and accepted by, De Puy, the same was revoked and withdrawn. De Puy petitioned for a writ of habeas corpus, directed to the warden of the penitentiary on BlackwelFs Island, and at the hearing on the return of the writ before Mr. Justice Blatchford, the foregoing facts appeared.
After stating the facts in the case, the learned judge said, —
"The main ground upon which the discharge of the petitioner is claimed is, that the pardon was delivered to the marshal, and, being delivered to the marshal, was delivered to the petitioner; that the proceedings which took place were of such • a character that the pardon was irrevocable; that the President had no authority or power to control the disposition to be made of the original paper in the hands of the marshal; and that the petitioner was entitled to the benefit of it, as a complete and full pardon.
"I have given careful consideration to the questions raised in regard to this branch of the case, and have examined the authorities cited and the statutes bearing on the subject, and have come to a conclusion satisfactory to my own mind. The question is an important one — a question of constitutional law, as to the proper construction of the powers of the President, under the Constitution, in regard to pardons, and a question involving personal liberty; and, for these reasons, and because I think it desirable that the true character of a pardon should be defined, I shall proceed to state, at considerable length, my views on the question, and the only question, which, it appears to me, is to be determined in this case; namely, whether this pardon was, or was not, actually delivered to the petitioner, in judgment of law.
"It is contended, on the part of the petitioner, that when this pardon received the signature of the President, and the seal of the Department of State, it was a completed act, and passed beyond the control of the President. I think that is an entire mistake. The law, undoubtedly, is, that when a pardon is complete, there is no power to revoke it, any more than there is power to revoke any other completed act. And yet the question still remains, — when is a pardon complete? It is argued, that a pardon stands on the same footing as a commission; and the doctrine of the case of Marbury v. Madison, 1 Cranch, 137, is invoked in support of this view. The opinion of the court, in the case of Marbury v. Madison, was delivered, in 1803, by Chief Justice Marshall, the same judge who, afterwards, in 1833, delivered the opinion of the same court, in the case of United States v. Wilson, 7 Peters, 150. In the case of Marbury v. Madison, the President of the United States had nominated Marbury to the Senate, for its advice and consent, to be appointed to the office of a justice of the peace of the District of Columbia. The Senate advised and consented to the appointment. The President signed the commission appointing Marbury to be such officer, and the seal of the United States was, in due form, affixed to it by the Secretary of State. Application was made to the Secretary of State to deliver the commission to Marbury. It was not delivered, but was withheld. On that state of tacts, the question came before the Supreme Court, as to whether Marbury was entitled to have his commission delivered to him, on the view that the delivery was a purely ministerial act, or whether there was any power on the part of the President, or of the Secretary of State, to control the commission. The Chief Justice, in his opinion in ^the case, uses this language: 'In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For, if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.' He then shows, that the Constitution and laws comtemplate, in regard to offices, three distinct operations: 1st. The nomination, which 'is the sole act of the President, and is completely voluntary;' 2d. The appointment, which 'is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate ;' 3d. The commission. He then states, that, in the case before the court at that time, the appointment was made by the President, by and with the advice and consent of the Senate, and was evidenced by no act but the commission itself; that the appointment, being the sole act of the President, was completely evidenced, when it was shown that the President had done every thing to be performed by him; and that, even if the commission, instead of being evidence of an appointment, should be considered as constituting the appointment itself, still, the appointment would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete; that the last act to be done by the President was the signature of the commission ; that he had then acted on the advice and consent of the Senate to his own nomination; that the time for deliberation had then passed, and the President had decided; that his judgment on the advice and consent of the Senate, concurring with his nomination, had been made, and the officer was appointed; that the appointment was evidenced by an open and unequivocal act; that this act, being the last act required from the person making it, necessarily excluded the idea of its being, so far as respected the appointment, an inchoate and incomplete transaction; that the power of appointment was exercised when the last act required from the person possessing the power had been performed; and that the last act was the signature of the commission. He then goes on to say, that when the seal was affixed, if the affixing of the seal was to be considered as necessary to the validity of the commission, the appointment was made, no further act remaining to be performed on the part of the Government. He then proceeds to consider the argument that was urged in reference to a commission, — that it was like a deed, to the validity of which delivery was essential, — and says, 'It has been conjectured that the commission may have been assimilated to a deed, to the validity of which delivery is essential.' On this subject, he comes to the conclusion, that if the act of delivery was necessary to give validity to the commission, it was delivered when it was executed and given to the Secretary of State for the purpose of being sealed, recorded, and transmitted to the party. But he holds that, in the case of a commission, a formal delivery to the person is not among the solemnities required, as evidences of the validity of the instrument, and that only the sign manual of the President and the seal of the United States are those solemnities. He thus expressly puts a commission, as evidence of an appointment having been made to an office by the President and Senate, on a totally different ground from an instrument which requires delivery, and holds that, when the appointment is made by the President, by and with the advice and consent of the Senate, and the President has signed the commission, and the seal of the United States has been affixed to it, the President has done every thing that he has any right to do in the premises; that his power then ceases; and that a delivery of the commission is not essential to the validity of the appointment. He then says, 'If the transmission of a commission be not considered as necessary to give validity to an appointment, still less is its acceptance.' He illustrates this view by the fact, that when a person appointed to any office refuses to accept it, the successor is nominated in the place of the person who has declined to accept, and not in the place of the person who had been previously in office, and had created the original vacancy.
"I have gone thus, at some length, into the views of the Chief Justice, in the case of Marbury v. Madison, for the purpose of showing, in contrast with these views on the subject of an appointment and a commission, that the same judge, in the same court, in delivering the judgment of the court in the case of United States v. Wilson, placed a pardon by the President on a totally different footing from that on which a commission was placed, in the case of Marbury v. Madison. In United States v. Wilson, the Chief Justice says, 'A pardon is an act of grace, proceeding from the power intrusted 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. It is the private though official act of the Executive magistrate, delivered to the individual for whose benefit it is intended. . . . pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance.' In the case of Marbury v. Madison, it was held, that a commission was not a deed, or assimilated to a deed, and that delivery was not essential to its validity. The two instruments are thus placed in as direct antagonism, on the question of the necessity of a delivery, as it is possible for the same court, speaking through the same distinguished jurist, to place two matters. It is manifest, therefore, that, under the Constitution and laws of the United States, a pardon must be regarded as a deed, to the validity of which delivery is essential. It is also apparent, that the decision in the case of Marbury v. Madison furnishes no support to the views urged on the part of the petitioner.
"The only question in this case is, whether this pardon was delivered, in the sense of the law, to the petitioner, or to any person for him. All that was done in regard to the pardon was, that the Secretary of State transmitted it to the marshal, with a letter, stating, 'I transmit herewith the President's warrant for the conditional pardon of Jacob and Moses De Puy, the receipt of which you will please acknowledge.' In the case of Commonwealth v. Halloway, 44 Pennsylvania, 210, a habeas corpus was issued to bring up the body of a prisoner who claimed to have been pardoned. The case was one before the full bench of the Supreme Court of Pennsylvania, the opinion of the court being delivered by Chief Justice Lowrie. In the opinion, the Chief Justice says, 'There are charters or patents for new inventions, for lands, for grants of corporate privileges, and as commissioners of public affairs, as well as those of pardons; and, though all these have a strong likeness as to their form, and to the source whence they immediately proceed, yet they have also some marked points of unlikeness that warn us to be cautious about confounding the rules that belong to any one kind with those of another. We notice here only the distinction that is important for this case. With us those that relate to new inventions, to lands,