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 HN1Go to this Headnote in the case.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 U.S. v. Wilson, 7 Pet. 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 contemplate, 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 everything 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 farthest, 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 farther 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 everything 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 [supra], for the purpose of showing, [*20] 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 U.S. v. Wilson [supra], 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 U.S. v. Wilson, the chief justice says: “HN2Go to this Headnote in the case.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. 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 Com. v. Halloway, 44 Pa. St. 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 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 [*24] 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.”