#### John Frank Pargoud *v.*The United States.

*On motion to Dismiss.*

*A disloyal cittern of Louisiana livings Ms action in the Court of Claims for She proceeds of captured property. He pleads a special pardon from the President in the stead of the usual allegation that he never gave aid or comfort to the rebellion. He also relies on the President’s proclamation of amnesty, 29th May,*1865.

I. Where one lias given aid or comfort to tlie rebellion, he cannot maintain ' an action in the Court of Claims under the *“ Abandoned or captwredproperty act,"*(12 Stat. L., p. 820,) notwithstanding a special pardon granted to Rim by the President, and notwithstanding the President’s *Amnesty proclamation, 29t]¡, May,*1865; for Congress have limited the jurisdiction of the court to those who gave no aid or comfort to the rebellion, and the restriction is to the physical fact resting in history, and is not annulled by the legal consequences flowing from a pardon or amnesty. The privilege of prosecuting the government is not a civil right to which one may be restored by the executive.

II. Acts are *in pari materia*when they have a common purpose which they are the means of carrying into effect. But where a section has no common purpose either with the statute in which it is found, or with other statutes *in pari materia*with the act in which it is, it is to be construed by its own purpose and confined to it. The third section of the *“ Abandoned or captured property act,"*(12 Stat. L., p. 820,) seeks to restore property improvidently captured. It is not *in pari materia*with the other sections of the same act, nor with the *“ Confiscation act,"*(12 Stat. L., p. 589,) which seek to suppress the rebellion, and to punish rebels.

III. Under the *“Abandoned or captured property act,"*(12 Stat. L., p. 820,) the claimant has to prove that his property was not liable to seizure. The jurisdiction of the court and his own rights depend on that fact. If the property was liable to capture the court has no jurisdiction to afford relief on other facts.

*Mr. li. 8.*Sale, special counsel of tbe Treasury, for tbe motion:

*Mr. T. J. Durant*opposed:

In tbis case, tbe petitioner, having been guilty of participating voluntarily in tbe rebellion, received pardon and amnesty from tbe President by virtue of tbe thirteenth section of tbe *338*Act lWi July,*18G2, (12 Stat. L., p. 592,'l and under bis proclamation of amnesty of May 29, 1865. (13 Stat. L., p. 758.)

Thus redeemed, the petitioner frames bis petition without alleging and swearing that be has not in any way aided, abetted, and given encouragement to the rebellion, as is required in ordinary cases by the Buie of Court No. 2.

■ The question to be decided is, whether, under these circumstances, this court can refuse to hear his petition and grant him relief:

The arguments of the learned counsel on these facts are fully quoted in the opinion of the court.

Loring, J.,

delivered the opinion of the court:

This case is important because of the rights it inwolves; and it is the first case here requiring us to construe the act of March 12, 1863, together with those acts, and proclamations of the executive, which measure the clemency of the government toward those who supported the rebellion, and which make a part of the means for the pacification of the country and the practical restoration of the Union. *A.*purpose greater than this lias never at any time, nor in any country, been submitted to judicial cognizance; and in assuming our portion of its responsibility, we acknowledge our obligation to counsel whose accuracy of thought and expression has presented to us distinctly the case we are to adjudge; and if we confine our opinion to the argument submitted to us in behalf of the petitioner, it is only because we have not found elsewhere anything so efficiently maintaining the claim.

The petitioner is a citizen of Louisiana, and he claims against the United States the proceeds of eighty-five bales of cotton which he alleges ivere taken from his possession by them.

He sets forth in his petition as follows, viz: “ That he ivas guilty of participating in the rebellion against the Uni ted States, but that he has been duly and legally pardoned for such participation by the President of the United States, and that he has received a pardon under the great seal dated on the 11th day of January, 1865, which has been duly accepted by your petitioner, and his acceptance, duly notified to the Secretary of State, is now on file in the office of that department; and he has complied with all the legal formalities in such case made *339•and provided; and tinder tbe proclamations of amnesty and pardon issued by tbe President of tbe United States, your petitioner now stands and is entitled to be considered in law as if be never bad in, point of fact participated in tbe late rebellion against tbe United States, and consequently be now avers that in legal intendment, and under tbe allegations already made, be lias at all times borne true allegiance to tbe government of tbe United States, and tbat be lias not in any way aided, abetted, or given encouragement to tbe rebellion against tbe United States.”

The petitioner then sets forth tbe circumstances of tbe seizure of bis cotton, which, on this motion, are not material, except as they show tbat bis offence was prior to tbe seizure of tbe cotton, which be states to have been in tbe summer of 1865, “and after tbe surrender of all tbe rebel armies, and tbe suppression of tbe armed rebellion.”

The United States moved tbat tbe petition be dismissed—

1. Because tbe said petition does not contain sufficient averments to give this court jurisdiction to bear and determine said cause.

2. Because it is not stated and set forth in said petition tbat the claimant has at all times borne true faith and allegiance to tbe government of tbe United States, and tbat be has not in any way voluntarily aided, abetted, or given encouragement to rebellion- against tbe government of tbe United States, as required by tbe 12 tb section of tbe act of Congress to reorganize tbe Court of Claims, approved March 3, 1863.

3. Because said petition does not contain the averments required by Buie No. 2 of tbe rules of practice adopted by tbe Court of Claims.

The precise ground of claim is stated in tbe petition, and was fully developed in tbe argument of tbe learned counsel for tbe petitioner, which is thus condensed in bis brief:

> “‘ Giving aid and comfort to tbe rebellion’ was a crime under tbe second section of *Act nth*July, 1862. (12 Stat. L., p. 590.) This crime tbe petitioner bad been absolved from by pardon and amnesty.

> “‘Pardon makes tbe offender a new man, and acquits him of; all corporal *penalties and forfeitures*attached to tbat offence for which be obtained bis pardon.’ (4 Black’s Com., p. *402.) It is now settled tbat a pardon removes not only tbe punishment,. *340but *all the legal disabilities consequent on the crime.*(Bacon’s *Abridgment, verbo*Pardon, vol. 7, p. 416, ed. 1846.) And a pardon prior to conviction prevents all forfeiture of lands or goods. (Same, p. 418.) Pardon by tlie President of one couvicted of counterfeiting renders the convict competent as a witness in a State court. *(Hoffman*v. Coster, 2 Wharton Penn., p. 453; *The People*v. Pease, 3 Johnson’s Cases, p. 333.) A pardon, when it is full, releases the punishment, and blots out the existence of the guilt, so that in the eye of the law the offender is as innocent as if he had never .committed the offence. *(Ex parte Garland,*4 Wallace, 480.)

> “The benefit of amnesty being added to the pardon *greatly*strengthens the petitioner’s case. Pardon alone does not do away with the fact that crime was committed; but amnesty buries the crime in oblivion. It is a matter of public policy. It raises the *presuviptio juris et de jure*that no such crime was ever committed, and forbids 'the judge to know it — that is, to allow it to be alleged and proved.

> “The 13th section of the *Act Ylth*July, 1862, (12 Stat. L., p. 582,) having used both words *pardon and amnesty,*intended, according to the well known rule of interpretation, to give to offenders something more than pardon. The President, in his proclamation of May 29, 1865, (13 Stat. L., p. .728,) offers ‘amnesty and pardon, with restoration of all rights of property, except in slaves.’ Having received the benefit of this proclamation, petitioner has been both pardoned and amnestied, and restored to all his rights of property.

> “ The legal meaning of amnestyis synonymous with its derivation; it is an act by which the offence is blotted out, and in a court of justice cannot be known to have existed.

> “ ‘Amnesty is perfect oblivion of the past.’ (Vattel’s Law of Nations, b. 4, chap. 2. § 20.) All damages caused by the war are likewise buried in oblivion. ‘ They are considered as having never happened.’ . (Same, § 21.) Amnesty carries with it the abolishment of crime, prosecution, and condemnation; so that a second offense committed after an amnesty cannot entail the increased penalties attached by law to second offences. *(Clivi-encetfs Case,*Sirey’s Jurisprudence of the Court of Cassation, France, vol. 26, year 1826, part 1, p. 164. See also, *Charas-son’s Case,*Sirey’s Jurisprudence, Court of Cassation, year 1839, vol. 39, columns 984,985.) ‘Amnestyis more than pardon, since, *341instead of doing away with tlie further eifects of a sentence, it suppresses forever the accusation itself, and consequently renders the crime itself as if it had never taken place.’ (Banter’s Treatise on Criminal Law, edition, Brussels 1837, p. 498.)

> “The President having, by his plenary power, made the petitioner as if he never had committed the crime, and having, by his act of grace, so effaced the criminal act that it not only has ceased to exist, but courts are forbidden to listen to an allegation of it, it follows that the rule of court, which calls upon the petitioner to make affidavit in respect *‡0*the matter, is in conflict with the act of the President and the legislation of Congress.

> “ If, then, the petitioner, who has, in pursuance of the public policy of the government, been so restored as makes it *legally*right to predicate of him that he never committed the crime of aiding the rebellion, may nevertheless be required to swear that the physical fact never existed, which he cannot do, as a fact resting in history cannot be blotted out; and if, by reason of the court’s insisting on the physical, and refusing to admit the moral, condition of the fact as it has now been legally reconstructed, the petitioner may be deprived of his property, then it is clear the court annuls the pardon and the amnesty.”

Whatever maybe the rights of the petitioner, lie can enforce them only in a court of competent jurisdiction, and this court can use only the powers conferred upon it. And our only power to entertain claims for captured and abandoned property is under the act of March 12,1863, c 120, and' according to it. And the first question here, and that on which the motion to dismiss the petition has been made and argued, is, whether this court has jurisdiction to entertain the case presented by the petition.

Admitting all that has been claimed by counsel, or is established by the authorities cited as to the effect of pardon and amnesty in the exposition of treaties under the law of nations, or the administration of criminal law and that with regard to these it effaces and blots out the crime so that it ceases to exist as such, and only remains (in the language of counsel) as “a physical fact” “resting in history.” Yet it was certainly competent for Congress to limit the jurisdiction of this court on such “physical fact;” and the question is whether they have done so and to what extent and with what effect in a case like this.

*342That' a crime is effaced by pardon, and amnesty is a legal fiction expressed in the language of metaphor; it is borrowed from courts of criminal jurisdiction which find crimes and enforce penalties, and it is not of necessary apx>lication here under the act .of March 12, 1863, for we have no criminal jurisdiction and cannot find a crime or inflict a punishment, nor take cognizance of an offence or offender against the laws. The act gives us no such authority. It only authorizes us to find the facts on which the United States propose to restore property to its legal and lawful owner, in correction of an error committed by the United States in seizing as the property of rebels the property of loyal citizens. This purpose of correcting the error of the seizure, of itself, distinguishes between those who were and th ose who were not rebels; between those whose property was and those whose property ivas not liable to seizure, and thus refers necessarily to that aiding of the rebellion which counsel described ás “a physical fact” “resting in history,” “which cannot be blotted out;” for on this it depends whether the seizure was authorized or unauthorized, and whether there was or was not an error to be corrected.

Those who never aided the rebellion, in the ordinary meaning of those words, are entitled to their property, because they have not done the act for which it ivas seized. They have committed no offence and are not the subjects of pardon and amnesty, biit are of their own right entitled to what the statute was intended to give them, the best redress that the circumstances permitted for the wrong done them; so that their whole case under the statute, their title to the restoration of their xiroperty, and the consideration and obligation on which the United States act in restoring it, and correcting the error of its unauthorized seizure, depend altogether on the fact whether ante-cedently to the seizure they were rebels; and with this their pardon and amnesty at a subsequent time have nothing to do.

What this court is to find, and the claimant is to prove, is not his crime but his innocence, and the error of the United States in making the seizure. It is they who are on trial here, and not he; for it is on their error; the unlawfulness of their act in making the seizure, that our judgment for his recovery is conditioned by the statute, which thus gives us a special jurisdiction over a tort, or unauthorized act of the United States, entirely foreign to our general jurisdiction, which is limited to *343contracts of .tbe United States. And tlie pardon and amnesty of a claimant belongs to bis misfeasances and-not to those of the United States. The language of the statute to the claimant is merely this: prove that your-property was not liable to seizure and we authorize the Court of Claims to adjudge its restoration to you. And this is the whole of his right and our jurisdiction under the statute; and if the claimant has now other rights, not founded on the fact that when his property was seized he had not given aid or comfort to the rebellion, he cannot xirosecute them here under the act of 12th March, 1863, That act, and our authority under it, reach only to the redress of a wrong, and the redress of a wrong belongs only to those who have borne it, and in confining it to them we deny no right to others and inflict on them no punishment.

The difference between the unlawful and the lawful seizure of-property is wide and clear; and where a statute whose words are plain, and whose purpose is luminous from its justice, mates the restoration of property to depend on the one, we can find no reason or authority for extending it to the other. The petitioner shows that the seizure of his property was lawful when made, and therefore that his case is not within the letter or purpose of the act or our authority under it.

The petitioner claims that under the pardon granted him, and the President’s proclamation of May 29,1865, he “has been both pardoned and amnestied, and restored to all *his rights of property?*But a suit in this court under the act of March 12,1863, is not “ a right of property,” as those words are used between individuals; for the United States as sovereign are not liable to suit, and if they submit themselves to suit it is *ex gratea,*and on such terms as they may see fit. The right, and the only right the petitioner can obtain here, is a right of antion against the United States under the act of 12th March, 1863, and he who comes here for a right limited by statute, must take it on the terms upon which it is limited.

It was said the act of 12th March, 1863 was *in pari materia*with the acts of August 6,1861, July 17,1862, and July 2,180,4, &c. And this as a general proposition is true; for acts are *in pciri materia*when they have a common purpose which they are tlie' means of carrying into effect. But the 3d section of the act of 12th March, 1863, has no common purpose with the statute in which jt is found, or the other statutes above mentioned. *344Those seek to suppress the rebellion by reducing its means, and to punish rebels by the seizure and confiscation of their property, and to collect it and secure, it for the United States.. But the 3d. section of the act of 12th March, 1803, seeks to remedy the. misuse of the other acts by restoring property improvidently captured under them to its loyal and lawful owners. Its purpose, therefore, is not the purpose of the other statutes, or of the other sections of the act in which it stands, and it is to be construed by its own purpose and confined to it.

And on the whole case we decide as a conclusion of law as follows:.

That the petitioner having given aid and comfort to the rebellion-prior to the seizure, in 1865, of the cotton, the net proceeds of which are claimed in this suit, cannot maintain the same under the act of 12th March, 1863, c. 120, notwithstanding the pardon granted to him in 1866, and the proclamation of the President made May 29,1865.

Casey, COh. J.,

dissenting:

The only thing that ever stood in the way of the claimant’s recovery was the fact that he had been guilty of a crime. There was á legal disability or outlawry resting upon him as a punishment for that crime. But when that crime is obliterated by a pardon the guilt is purged, the punishment is remitted, and the offender stands in all his legal relations and rights precisely as if-he had never committed the offence; just as one outlawed in England, when pardoned of the outlawry by the sovereign, was restored to all his rights and enabled to maintain and enforce them in all the courts by the production of a charter of pardon from the sovereign, when all his property taken into the King’s hands was-restored by writ of *-amoveos maims.*(Tidd Pr., p. 40.)

If this were a proceeding *in fem*in a district court under the seventh section of the act of July 17, 1862, to condemn this property, would not the pardon pleaded here be a complete and perfect answer to the libel 1' Of this there can be no doubt whatever. The very point was decided directly by the Supreme Court of the United States in the cases of *Armstrong’s Foundry,*(6 Wallace, 766,) and *St. Louis Street Foundry,*(6 id., 770.) If so, why should it not have the same operation and effect here ? *345Are we not bound to administer tbe same law in tbe same way as other courts ? Is there one interpretation of a statute for ordinary courts and another exposition of the same enactment for the Court of Claims ? Do not all valid constitutional acts of any department of the government bind us as much as they do any other functionaries or tribunals ?

In the cases cited the provisions and requirements of the act of August 6,1861, denouncing forfeiture for using or allowing the property to be used in aid of the rebellion are as positive and peremptory as the clause in the third section of the act of March 12, 1863, upon which the majority rule this case. That act was as binding upon the district and Supreme Courts as is this act upon us. .They had no jurisdiction of the parties or of the subject-matter except as that act conferred it. Our jurisdiction is no more limited by statute than is that of the district courts. They have precisely such as is conferred by statute and not one iota more, and we have neither more nor less. Each is a statutory court, which can exercise legitimately only such jurisdiction and powers as Congress has conferred, and no others. The distinctions attempted in the opinion just read prove no difference between this court and others established by Congress in jurisdictional rights and powers. But they are based upon the assumption that Congress may prescribe the rule of decision for us as well as define our jurisdiction, and that, too, irrespective of any limitations and restrictions imposed by the Constitution of the United States, and without regard to the operation and effect of valid and constitutional acts of other departments of the government. Against such a construction I enter now my earnest dissent. It destroys the judicial character of this tribunal and makes it the mere sub-committee or commission of the legislative department of the government, to carry out its -varying will or register its incongruous decrees. When this shall be its acknowledged position it will necessarily sink into insignificance and neglect. • ■

But I do not so understand the duties and functions o,f this court. Congress confers, defines and regulates the powers and jurisdiction we shall exercise as it does of all courts, except the Supreme Court alone. It designates the subjects-matter that shall come within our cognizance. But, in deciding and determining upon them the Constitution is as imperative, *346and the rights of the citizen as sacred and obligatory as they are, in any other forum. Hence, Congress may declare as a punishment for a crime that a citizen shall not sustain a suit in this court; but they cannot enact that the President shall not pardon him of that crime; for he holds that power, not' from them, nor subject to their will, but directly from the people through their Constitution. Nor can they enact that when he has pardoned the offence this act of clemency shall not have its legitimate effect of removing all penalties and disabilities consequent upon or growing out of the crime in all courts and in all places. And if they cannot do so directly neither can they do so indirectly; if it relieves in one court it relieves’ in all courts ; if it blots out the offence and remits all punishment for it the offender stands in all legal aspects and situations precisely as if he had never transgressed. And it is conceded that if he had never committed this offense of giving aid or comfort to the rebellion that his standing in this court would be unim-peached and unimpeachable. Yet such is his legal status today. Such is the undoubted and indubitable effect of the pardon, and it is with legal relations and rights alone that we are dealing. With the moral, the physical, or the historical existence of the offence, unconnected with its legal effects and consequences, we have no earthly concern, as a court called upon to adjudicate on the legal rights and relations existing between the government and its citizens.

To such an extent is this the case that the claimant could sustain in any competent court an action of slander against any one who should call him a traitor, the pardon having made him in law a new man and given him a new capacity. (5 Bac. Ab., 295; 2 Hawk. P. C. C., 37, § 33; 2 Bl. Com., 402; Plowd., 401; 7 Peters, 150.)

In Bishop’s Cr. L., § 713, it is said: *“*The effect of a pardon is to absolve the party from all the consequences of his crimes.” (Cope v. *The Commonwealth,*4 Casey, 297; *Perkins*v. *Stevens,*24 Pick., 280.)

In the case of *Ex parte Garland,*(4 Wallace, 380,) a similar disability imposed by act of Congress was held by the Supreme Court of the United States to be removed by a full and unconditional pardon; and the same ground assumed here, that the granting of a privilege might be coupled with any conditions Congress might see fit -to impose, was promptly repudiated by *347the court; for, says the court, “ the effect of this is to relieve the petitioner from all penalties and disabilities attached to the offence of treason committed by his participation in the rebellion. So far as that offence is concerned he is placed beyond the reach of punishment of any kind.” *It is not within the constitutional ■poioer of Congress thus to inflict punishment beyond the reach of executive clemency.*

It is true that the United States can only be sued in such courts, in such manner, and for such causes as Congress shall prescribe; but that, in the exercise of'that right, they can make it the means of either annulling or overslaughing the constitutional powers and prerogatives of other departments cannot be maintained. They cannot, in this or any other way, punish an offence which the President has pardoned.

The main reasons assigned in the majority opinion for refusing to consider the pardon are that it “belongs to courts which administer the criminal law, and it does not belong here, for we have no criminal jurisdiction and cannot find a crime, or inflict a punishment, nor take cognizance of an offence or an offender against the laws.” This is clearly a mistake, and is in direct opposition to the cases of *Fx parte*Garland, (4 Wall., 333;) *Armstrong's*Foundry, (6 id., 766;) *St. Louis Street Foundry,*(6 id., 770.)

Those cases were all heard and decided in courts that exercised for the time being no more criminal jurisdiction than we possess. The rule of law, as well as the rule of common sense, is, that whenever a civil disability is set up as resulting from an alleged criminal offence an acquittal by a competent court, or a pardon by competent authority of that offence is a pertinent as well as a complete answer to such allegation anywhere and in any court.

Nor do I consent to the proposition of the majority, that the power to sue the government, in this court, *is aprivilege bestoived by Congress, and not*p,. *right conferred by the Constitution.*The grant of such a power is as express and explicit as any other in the Constitution. It was put there not for the benefit of Congress, but to maintain and guard the rights of the citizen. And when the situation and wants of the country require such a court, and the right to sue the government, it is then as much the duty of Congress to provide such a tribunal as it is to coin money, to levy taxes, or regulate commerce; and it is the un*348doubted right of the citizen to have such a court. And they have precisely the same warrant for doing’ so. And in the performance of-that duty have no more right to overstep constitutional limitations, or infringe upon the rights and functions of other departments, in the one case than in the others. And when such a court is established and its jurisdiction defined, no citizen of the United States, who has a cause falling within its enumerated faculties, can be excluded arbitrarily, and without just cause from maintaining a suit there. To so exclude him, there must be some specified legal disability. If he is to be punished by such exclusion for an offence committed, it'must be for an unpardoned crime. For he can no more be punished ' m that manner after pardon, than he can be tried and convicted and hung for the treason that was remitted and purged by the executive clemency. Could Congress exclude a man because he is a citizen of Pennsylvania or of Ohio ? or because he is a colored man, or a red-haired man, a Catholic or a Protestant ? I may be told that in all these specified cases the Constitution would interfere to prevent such exclusion. I grant it. But no more than it does in the case under consideration; for the constitutional power of the President to pardon is coextensive with the power of Congress to define and punish offences, .except in impeachments.

Congress may put limitations and restrictions upon suits brought either against the government or the citizen, but thes^ cannot make it the occasion for passing and enforcing laws forbidden by the Constitution; nor such as interfere with and annul the separate and independent powers and acts of co-ordinate branches, whether as a condition, limitation or restriction, or a direct enactment. A bill of attainder or *ex post facto*law; a religious test as a qualification for office; a title of nobility granted by Congress, are all equally void. They are so everywhere, and in all places, and especially in all courts; and a court that has not the power or the independence to declare them so would be entitled to but little respect from either Congress or the people.

But no question of the kind arises here. Congress had the *power*to impose the disability in the third section of the act of March 12,1863. The President had an equal power to remove it. He has done so. There is no conflict; each power was exercised by the same authority, and each is equally binding upon us.

*349It cannot be disguised that tbe direct effect of tlie decision in tbis case is to set aside and disregard an unimpeaobed and valid pardon, invested with all the forms and solemnities the Constitution and laws require.

The property of the claimant was seized for the. crime which has been pardoned. It was sold and the proceeds are in the treasury. The law allows him to prefer his claim to the proceeds, in this court, within two years after the rebellion. The limitation has expired. By act of 27th July, 1868, this remedy is made exclusive of all others. By act of March 3, 1863, tlie judgment against him is made a perpetual bar to any other claim, or any other suit, in any form or tribunal. Therefore, by whatever specious sophistry and rhetoric the subject may be invested and mysfciñed, it comes to this at last — it is confiscation pure and simple, and nothing else. Moreover, it is confiscation by way of punishment for a crime which has been fully pardoned.

To take a convicted criminal from his cell, with a full, free, unconditional executive pardon in his hands, and hang him, would shock the moral sense of Christendom j biit in my opinion, it would not be a whit more illegal and unconstitutional than to confiscate this man’s property as a punishment for a crime, for which he holds up before us the full and accepted pardon of the President of the United States.