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 facts, 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 instru

ment, 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.... A 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,

to corporate privileges, and to offices, are usually only the last step in the process by which certain rights become completely vested; and, when all preliminary steps are regular and complete, this last step becomes a mere ministerial duty, definitely prescribed by law, and the claimant has a right to demand that it shall be taken, because he has performed all the conditions upon which the law has made his title to it to depend.' That was the case in Marbury v. Madison, where the last step- the delivery of the commission-was a mere ministerial duty, the right to the office having previously become a vested right. He then goes on to say, 'But charters of pardon are entirely different from these, in the conditions on which they depend; for (not to speak of those which are issued in pursuance of promises, by proclamation or otherwise, of executive clemency), they are forwarded on mere grace, and not at all on preliminary steps that furnish legal merits, or a legal title to them. The intention of the Executive to grant a pardon can have no legal force until carried into completed act. And his instructions to his proper officers, and their work in pursuance of his instructions, are only the means by which he embodies his intentions into the completed act, and have no force out of the Executive sphere until thus completed; though the courts may, when the intention is satisfactorily shown, suspend further proceedings, in expectation of the actual pardon, as has been sometimes done in England. The completed act is the charter of pardon and delivered. This is the one and only step that gives title to a pardon. Until delivery, all that may have been done is mere matter of intended favor, and may be cancelled, to accord with a change of intention.' He then discusses the question, Was this pardon delivered?' It appeared, that it had come to the hands of the warden of the prison; and the court says, that, 'by usage, its delivery to the warden is prima facie equivalent to delivery, or is a constructive delivery, to the prisoner; but it is open to be proved no delivery, by showing circumstances that are inconsistent with the intention to deliver it.' "

The judge then considered the question in whose custody the prisoner was, and determined that he was in the custody of the warden of the penitentiary, and not in the custody of the marshal.

"Under this state of facts, the question arises, whether, when a prisoner is exclusively under the control of the warden of a prison-even though it may not be necessary to deliver a pardon to the prisoner himself, and even though the delivery of a pardon to the warden of the prison, who has the exclusive custody and control of the prisoner, may be equivalent to a delivery to the prisoner-whether a delivery of a pardon to any other person, before it reaches the warden of the prison, is equivalent to a delivery to the warden of the prison. This question must be answered in the negative, not only on general principles, but on the evidence in this case. It appears that the marshal usually gave or transmitted the pardons which he received from the Department of the State, to the keepers of the prisons where the prisoners pardoned were confined. Why were the pardons sent to the keepers of the prisons? Undoubtedly, because, under the act of 1834, the prisoners were and are in the custody of the keepers of the prisons, and not in the custody of the marshal. The marshal having no power to take a prisoner out of the prison, cannot go to the prison with a pardon and take the prisoner out, retaining the pardon himself; and the fact, that the marshal has always been in the habit of giving or sending pardons to the keepers of the prisons, serves to show conclusively, that a delivery of a pardon, in order to be effective, must be, at least, a delivery to the keeper of the prison.

"The marshal was, in this case, no more than the messenger of the President. If the President had sent the pardon by a special messenger, and had directed him to go to the warden of the Blackwell's Island Penitentiary, and to deliver the pardon

to him, and had despatched the messenger on his way, it cannot be questioned that the President could, by a telegraphic despatch, or any other communication, to the messenger, while on his way, have lawfully directed the messenger not to deliver the pardon to the warden. If the President can arrest the mission of the messenger when the messenger has departed but ten feet from the door of the presidential mansion, he can arrest such mission at any time before the messenger delivers the pardon to the warden of the prison.

"No question arises, in this case, concerning any right or power, on the part of the President, to revoke or recall a completed pardon. In the language of Chief Justice Lowrie, before cited, the completed act is the charter of pardon and delivered. This is the one and only step that gives title to a pardon. Until delivery, all that may have been done is mere matter of intended favor, and may be cancelled, to accord with a change of intention.'

"The point urged, on behalf of the petitioner, that the pardon was signed by President Johnson, and was sealed during his administration of the Executive office, and that the order to the marshal to return the pardon to the Department of State was made by his successor, President Grant, is of no force. The office of President did not die when President Johnson gave place to President Grant. The power of pardon is conferred by the Constitution upon the office of President. The President who signed the pardon in this case would have had precisely the same right which I think his successor had, to arrest the pardon before it was delivered to the warden of the prison; and the successor had the same right in that respect as his predecessor would have had. I place my decision, in this case, solely on the ground that there never was any delivery of the pardon to the petitioner, or to any one for him. There never was any complete pardon. It has not been contended, on the part of the United States, that the President has power to annul, or withdraw, or cancel, a completed pardon.

"In connection with the fact that the pardon was never delivered to the petitioner, or to any one for him, there is one circumstance that is worthy of observation, and that is, that Nelson, the person who went to Washington to procure this pardon, asked to have it delivered to him, and was refused, it being stated to him by the chief clerk of the Department of State, that the pardon must be sent to the marshal. That was equivalent to a declaration by the Executive authority of the United States, that the benefit of a locus penitentice was claimed. If the pardon had been delivered to Nelson, for the petitioner, the case might, perhaps, have been different. I do not say that it would; but the circumstance that a request to deliver the pardon to a person claiming to be the agent of the petitioner was refused, is worthy of consideration. The Executive authority plainly said to Nelson, that it would not transmit this pardon by him, as the messenger of the petitioner, but would transmit it by its own messenger.

"Upon the ground that there was no delivery of the pardon in this case to the petitioner, or to any one for him, or to the warden of the prison, who, by act of Congress, had the exclusive control and custody of the petitioner, I hold that the petitioner is not entitled to be discharged, and that he must be remanded to the custody of the warden of the Penitentiary at Blackwell's Island.”

PENNSYLVANIA.

SUPREME COURT.- Rankine v. Demott. In this case the court applied the principle of Bronson v. Rodes and Butler v. Horwitz, and held that a rent charge payable in "gold or silver, lawful money of the United States of America," could only be satisfied by payment in coin dollars. Speaking of the decisions of the

Supreme Court of the United States, Agnew, J., who delivered the opinion, says, "The opinions of the Chief Justice result in this: that after the passage of the Legal Tender Acts there were two descriptions of money in use, coin and notes, both authorized by law, and both made a legal tender in payments. As a consequence, it is said, there being no express provision to the contrary in the law, it is a just, if not a necessary, inference, from the fact that both descriptions of money were issued by the same government, that contracts to pay in either are equally sanctioned by law. It was therefore held, that express contracts to pay coin dollars can only be satisfied by the payment of coin dollars. Consequently, the distinction taken in our cases between contracts for a specific article (money or goods), and contracts for lawful money (coin or currency), is now unimportant." The case of Rankine v. Demott will be found reported in the Legal Intelligencer for July 2, 1869.

SOUTH CAROLINA.

COURT OF ERRORS.-Express Company v. Hood. In this case the court held that a State tax imposed on the gross amount of the receipts of express companies was not unconstitutional as violating the provision of the Constitution of the United States which forbids a State to lay, without the consent of Congress, any imposts or duties on imports or exports. It was urged by the counsel for the Express Company that the tax was a charge upon the act of transporting articles into and out of the State, and was, hence, a tax upon the articles as exports or imports. But the court held that this inference, if it exists, is entirely too remote and incidental to invalidate the act. The opinion was delivered by Dunkin, C. J. It may be found in the number for Aug. 27, 1869, of the Legal Gazette, published in Philadelphia, and will appear in the next volume of the Reports of South Carolina.

WEST VIRGINIA.

UNITED STATES DISTRICT COURT. — Morrill v. Armstrong. The instructions given to the jury in this case, by Judge Jackson, embraced the following important points:

A grant from the Commonwealth of Virginia for land, made in 1796, upon a survey made in 1795, including within its limits prior claims of others, not specified otherwise than by the mention of the estimated quantity, excludes, by the purport of the grant, lands previously granted, as well as those entered but not granted, within the exterior boundaries of the later grant.

Where a person had adverse possession of the lands of another, which was forfeited for the failure of the owner to have the same entered on the books of the Commissioner of the Revenue, and pay taxes thereon, and became vested in the Commonwealth in 1836, the adverse character of the possession ceased; and when the Commonwealth afterwards, by a special act of the legislature, passed in 1844, upon a redemption which was made in 1845, released the title to individuals, neither the possession before the forfeiture, nor that continuing while the title was in the Commonwealth, can be added to that after the release took effect. so as to bar an action for the lands.