under the clause in regard to the enactment of ex post facto laws. In the case of Garland, the Court said, "the power of the President was unlimited except in cases of impeachment, that it extended to every offence known to the law, and might be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment." And finally, that in its exercise, the President was not subject to legislative control. When granted after conviction, all faults and disabilities were removed, and the party was restored to all his civil rights. If, however, property or interests had been vested in others, in consequence of the conviction and judgment, or offices had been forfeited by conviction, the pardon did not work a restoration of office, property or interest.

§ 384. The property of one Armstrong having been seized under the act of Congress of August 6, 1861, entitled an act "to confiscate property, used for insurrectionary purposes," and said Armstrong having received full pardon and amnesty by the President, subsequent to the seizure, the question arose whether he was relieved from the penalty so far as the claim of the United States was concerned. In that case the property seized was a foundry which had been used by the Confederacy in the manufacture of war material. It was insisted in the argument that the confiscation was void absolutely, inasmuch as it was directed against the use of the property, rather than against the owner. The Court did not concur in that view, but said that it was clear that the statute regarded the consent of the owner to the employment of his property in aid of the Rebellion as an offence, and that forfeiture was inflicted as a penalty. "The general pardon of Armstrong relieved him of so much of the penalty as accrued to the United States." (6 Wall. 766.)

§ 385. In the case of the United States against Padelford (9 Wall. 531), the Court held that the government, having

seized the defendant's cotton, sold the same, and placed the proceeds in the Treasury, the government had become a trustee, and that upon the restoration of Padelford to his civil rights by the pardon of the President, he was entitled to the net proceeds precisely as he would have been had he been a loyal owner of the cotton so captured.

§ 386. A more important opinion was rendered in the case of the United States against Klein (13 Wall. 128). Subsequent to the decision in the Armstrong case, Congress passed an act, approved July 12, 1870 (16 Stat. 235), denying to the Court of Claims the ability to consider any pardon or amnesty granted by the President, and declaring that proof of loyalty in all cases should "be made irrespective of any executive proclamation, pardon or amnesty or other act of condonation or oblivion." Chief Justice Chase, in the opinion of the Court, reaffirmed the doctrine announced in the Padelford case, that the government had constituted itself a trustee, not only for those who were entitled to the proceeds of captured and abandoned property by virtue of their loyalty, but also for such as had been disloyal, but who were afterwards restored to citizenship by the clemency of the President. The Court reaffirmed the doctrine that each of the coördinate departments of the government, the Legislative, the Executive, and the Judicial, were independent each of the other; that the power to pardon is exclusively in the Executive, and that Congress has no legal capacity to do any act or thing which may affect the scope of the pardoning power, or impair the authority of the President in its exercise. The Court say: "It is clear that the Legislature cannot change the effect of such 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 Executive authority and directs the Court to be instrumental to that end."

§ 387. A general pardon and amnesty does not entitle the recipient to the proceeds of his property previously condemned and sold under the confiscation act, after such proceeds have been paid into the Treasury of the United States. In such cases the proceeds have become vested in the United States and the pardon is therefore inoperative to divest the government of the property. (Knote against the United States, 95 U. S. 149.)

CHAPTER XXXIV.

TREATIES.

ART. 2, SEC. 2, PAR. 2.

“He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

§ 388. The cases that have been decided under this clause of the Constitution relate in the main to the construction and interpretation of treaties. The first important case reported is that of the Cherokee Nation against the State of Georgia (5 Pet. 1). The question was raised at the hearing whether an Indian tribe known as the Cherokee Nation was such a sovereign and independent State that it could maintain a suit against the State of Georgia. The Cherokee Nation by proper authorities filed a bill in the Supreme Court and moved for a subpoena to the State of Georgia, and also for a temporary injunction to restrain the State from enforcing certain laws within the territory alleged to belong to the complainants. In the course of the opinion given by Chief Justice Marshall, by which the motion for an injunction was denied, it was said, "That an Indian Tribe or Nation within the United States is not a foreign state in the sense of the Constitution, and cannot maintain an action in the Courts of the United States." The opinion contains the suggestion that the attempted exercise of jurisdiction by the State of Georgia over the territory and people of the

Cherokee Nation was an unconstitutional exercise of power, but that the question of right was not properly before the Court. Again the Court say that the issuance of a writ of injunction would savor "too much of the exercise of political power to be within the proper province of the Judiciary Department." Finally, as a reason for not passing definitively upon the points that had been raised at the bar, the Court say that the vital point in respect to parties made it unnecessary to decide the quesion of power on the part of the judiciary.

§ 389. The question of the validity of the statutes passed by the State of Georgia was further and more fully considered in the case of Worcester against the State of Georgia (6 Pet. 515). The statute of the State of Georgia, passed in the year 1830, asserted authority over the territory and the members of the tribe of Indians known as the Cherokee Nation. The provision of the statute which was especially considered was in these words: "And be it further enacted by the authority aforesaid, that all white persons residing within the limits of the Cherokee Nation, on the first day of March next or at any time thereafter without a license or permit from his Excellency the Governor, or from such agent as his Excellency the Governor shall authorize to grant such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanor, and upon conviction thereof shall be punished by imprisonment at hard labor at the penitentiary for a term of not less than four years."

error.

There were some exceptions named as to the scope of this provision, but none of them related to the plaintiff in Worcester was a clergyman and an authorized missionary of the American Board of Commissioners for Foreign Missions, who had received authority from the President of the United States to visit the Cherokee Nation, to reside among them for the purpose of instructing them, and converting them to the Christian religion. He was arrested