Page:Federal Reporter, 1st Series, Volume 5.djvu/148

 136 FEDERAL REPORTER. �of remission should be construed witii reference to the law governing the extent and limitations of the power to pardon ; that by the settled law of Bngland and of this country the pardoning power oannot be so exercised as to take away or impair a vested private right or interest; that after suit brought in a popular action — that is, a suit for a penalty given by statute to any person suing for the same — the plaintiff ac- guires such a vested right or interest in the penalty that it cannot be impaired or taken away by a pardon; that what was before by the statute the right of everybody, bas become the plaintiff 's by his appropriating the same in the mode prescribed by law by the bringing of his action; that this gives him such an interest in the penalty that no pardon could divest him of that interest. �The general proposition. that the power to pardon is sub- ject to such a limitation as is thus contended for is well sup- ported by the authorities. Howell v. James, 2 Str. 1272; Coke, 3 Inst. 236, 237, 238; U. S. v. Harris, 1 Abb. U. S. 110; U. S. V. Lancaster, i Wash. C. G. 66; Shoop v. The Commonwealth, 3 Pa. St. 126; Rowe v. The State, 2 Bay (S. C.) 565. Nor does our law of pardons differ from the Eng- lish. Ex parte Wells, 18 How. 307. It seems, also, that the bringing of an action for a penalty given by statute to any person suing for the same creates an interest which a pardon cannot take away. Coke, 3 Inst. 237. But the question here is one of the construction of the statute. Whatever power of remission in the seoretary congress chooses to annex, as a condition to the grant of the penalties given, is not a power to pardon, but is simply a restriction, limitation, or condition annexed to the grant of the penalty. 4 Wash. G. C. 67. If this were a statute conferring the power to pardon offences against the United States, it must, of course, be construed with reference to ail those limitations and restrictions which attach to the power to pardon. The power to pardon ap- pears to be vested by the constitution in the president alone. Article 2, § 2. But this statute, not being a statute regulat- ing the exercise of the power to pardon, must be construed, not with reference to the restrictions on the power to pardon, ����