United States v. Athens Armory.

It is in evidence that Ferdinand W. C. Cook, of the late firm of Cook Brothers, died in 1864. The surviving partner, Francis L. Cook, interposes, and claims the legal title to the property before the court. In his claim and answer to the information, and likewise in his responses to certain special interrogatories propounded by the government, he confesses that, upon the premises, and with the machinery and implements, the manufacture of arms for the so-called Confederate government was carried on by Cook Brothers, both members of the firm knowing of the same, and consenting thereto, and believing that the arms were to be used and employed in the war then going on against the government of the United States.

He adds to the foregoing confession a formal denial of the motives, purposes, and intent charged in the information, and avers that all these things happened in the course of business transactions, Cook Brothers being workers in iron, and engaged simply in their ordinary vocation, and actuated solely by the desire of gain, and the hope of legitimate profit.

But that Francis L. Cook cannot thus purge himself of the offenses just confessed,-voluntarily fabricating arms for the so-called Confederate government, and believing, at the very time, that they would be employed in levying war against his country; and knowingly using and consenting to the employment of the property covered by the information, for insurrectionary purposes, -is a principle of the criminal law too well established to bear discussion. Respublica v. McCarty, 2 Dall. 86; United States v. Vigol, Id. 346; Exp. Bollman, 4 Cranch, 75, 126.

In addition to the many matters discussed during the hearing of this cause, the district-attorney alluded to a balance admitted by the claimant to be due by him to the rebel government, at the date of its downfall, amounting to sixty-nine thousand one hundred and

United States v. Athens Armory.

four dollars, in "Confederate treasury notes." But this question cannot be adjudicated in a suit in rem. The claimant interposed a plea in the nature of a plea of pardon, alleging that pardon was granted to him by the president of the United States, on December 11, 1865, and prior to the issuing of the warrant of arrest.

In his plea, he alleges that the president granted to him (using the words of the grant) "a full pardon and amnesty for all offenses by him committed, arising from participation, direct or implied, in the rebellion,' -adding an averment, that he has performed all and singular the conditions therein contained, and prays judgment and a writ of restitution.

The pardon was produced, and inspected by the court. It contains the following conditions, to wit: 1. That he shall take the oath prescribed by the president in his proclamation of May 29, 1865. 2. That he shall never acquire any property whatever in slaves, nor make use of slave labor. 3. That he shall "first pay all costs accrued in any proceedings instituted or pending against his person or property before the date of the acceptance of this warrant." 4. That he "shall not by virtue of this warrant, claim any property, or the proceeds of any property that has been sold by the order, judgment, or decree of a court under the confiscation laws of the United States." 5. That he shall notify the secretary of state, in writing, that he has accepted said pardon. A copy of the acceptance was annexed to the plea, and bears date December 12,

1865.

In proceeding to inquire into the legal effect of this pardon, it may be borne in mind that the documentary proofs show that it was granted on December 11, 1865, accepted on the ensuing day, and the proper officer notified. That the warrant of arrest was issued on November 22, 1866, and very shortly there

United States v. Athens Armory.

after the property was seized by the marshal; and at the March term, 1867, of this court, the district-attorney filed the information.

It is manifest from the language of the pardon itself, without resorting to construction, that the executive, by this warrant or grant to Francis L. Cook, not only forgave and buried in oblivion all offenses by him committed, arising from participation, direct or implied, in the rebellion; but also clearly intended to restore to him all his confiscable property. Observe the words, found in the premises,-"full pardon and amnesty," words the most comprehensive and potent that could be employed to carry out this intention. And if the grantee has performed all conditions precedent, and has not violated any of the conditions subsequent, then all the right, title, and immunities bestowed by the grant, vested, and continues vested in him; and-if the charter of pardon be construed agreeably to the laws of this State-in his heirs.

If this last conclusion is sound, it may be assumed -provided the conditions subsequent, in the pardon, were affirmative conditions, and not personal and inseparable from the grantee that had he died before complying with these conditions, his heirs could come in and comply; premising, of course, that the forfeitures or confiscations imposed under the provisions of these statutes, extend beyond the life of the grantee. This question might arise under the act of August, but not under the act of July, unless personal estate is included in the term "forfeiture" as understood in section 3 of article 3 of the Federal Constitution. And this proposition is equally as applicable to personal representatives as to heirs. Sir Edward Phitton's case, 6 Rep. 79 b, is in point. Sir Edward was outlawed at the suit of one R. after judgment, and before the general pardon of 43 Eliz.; and after the pardon Sir Ed. ward died. The court held, that his executors could

United States v. Athens Armory.

avail themselves of the pardon, and have the benefit of it; and this, too, whether executors or administrators were named in it or not. Citing Lord Mordaunt's case, Cro. Eliz. 294.

A pardon is an act of mercy flowing from the fountain of bounty and grace; its effect, when it is a full pardon, is to obliterate every stain which the law attached to the offender, to place him where he stood before he committed the pardoned offense, and to free him from the penalties and forfeitures to which the law had subjected his person and property:-"to acquit him," says Sir WILLIAM BLACKSTONE, "of all corporal penalties and forfeitures annexed to the offense for which he obtains his pardon." 4 Com. 402.

"A pardon," says Lord COKE, "is a work of mercy, whereby the king, either before attainder, sentence or conviction, or after, forgiveth any crime, offense, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical. All that is forfeited to the king by any attainder, &c., he may restore by his charter." 3 Inst. 233 d.

The King v. Grenvelt, 12 Mod. 119. Motion to discharge Dr. Grenvelt from a fine, pro mala praxi. It was urged, that the king having granted the fines to the college, he could not by his own pardon destroy his own grant; and that the fines remained notwithstanding.

"But per CURIAM, seriatim: The penalty pro mala praxi, is only a satisfaction to the public justice, and not to the party, who had his action on the case; and that whenever a crime is pardoned, all the effects and consequences thereof are discharged; that when an act of Parliament appoints a fine for a public offense, such fines, of common right, belong to the king, unless they are otherwise particularly disposed; that the king, by granting away his fines, does not extinguish his power of pardoning, for that would be an extinguishment of his prerogative by implication; and the power of

United States v. Athens Armory.

pardoning being inseparably annexed to the crown, and not grantable over, the king therefore pardoning this offense, before the fine actully imposed, whereby an interest would have vested in the grantee, the offense was thereby gone, and the penalty pending thereon discharged."

In Exp. Wells, 18 How. 307, it was said by a distinguished jurist-Mr. Justice WAYNE,-in pronouncing the opinion of the court, that "when the words, to grant pardon, were used in the constitution, they conveyed to the mind the authority as exercised by the English Crown, or by its representatives in the colonies. We must, then, give the word the same meaning as prevailed here and in England, at the time it found a place in the constitution."

Mr. Justice FIELD, in delivering the opinion of the court, in Exp. Garland, 4 Wall. 333, said: "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense."

Although laws are not framed on principles of compassion for guilt; yet when Mercy, in her divine tenderness, bestows on the transgressor the boon of forgiveness, justice will pause, and, forgetting the offense, bid the pardoned man go in peace.

Judgment.-On hearing the above cause, and having inspected the charter of free and full pardon granted by the President of the United States, on December 11, 1865, (before any judicial proceedings had been instituted in court for the condemnation of the property covered by the information), to Francis L. Cook, the claimant, and by him pleaded in bar of these proceedings, it is considered and adjudged by the court