LA PEYRE'S CASE. Jean M. La Peyre, appellant, v. The United States, appellees.
(Not reported in C. Gis. B.; not yet reported in Wallace.)
On the claimant’s Appeal.
The Act 2d Jnly, 1884, (13 Stat. L., p. 377 § 8) provides that the Treasury may purchase products brought in from the insurrectionary districts at three-fourths of the value thereof. “To meet the requirements” of the Jot the Treasury Regulations provide that its agents shall “receive all cotton.” brought in “and forthwith return to the seller three-fourths thereof.” Ón the 18th Time, 1865, commercial intercourse between New Orleans and places west of the Mississippi being still prohibited, the claimant ships from such aplaoei76bales of cotton, consigned to the Treasury agent in New Orleans. The cotton reaches New Orleans on the 21th. On thesame day, the President’s Proclamation of that date is filed in the office of the Secretary of State and sealed with the seal of the United States, though it is not published or promulgated till the27lh. On the 26th, the claimant and the agent being in ignorance of the Proclamation, a bill of sale is executed from the one to the other for all the cotton, and three-fourths thereof is immediately returned to the claimant pursuant to the Regulations. Subsequently, the one-fourlh retained is sold and the proceeds pa-id into the Treasury. The claimant brings his suit to recover them bad;. The Court of Claims', being equally divided on the question when did the. Proclamation take effect, dismisses the petition. The claimant appeals.
I. A proclamation of the President transmitted to the Secretary of State and sealed with the seal of the United States takes effect from the day of its date, and not from the time of its publication. The same presumptions are to he applied to it which are applied to statutes, and no inquiry can ho permitted as to the time of its promulgation. For if a proclamation he denied, it is to he tried hy the record'thereof; and on its being produced its date will he conclusive as to the time when it had *166a valid existence. Davis J. concurring in tlie judgment, and Hunt, Milder, Field, and Bradley, J. J., dissenting.
II. It appears that tlie Treasury Regulation which required its agents within the Union lines to “receive all cotton” brought in from the insur-rectionary districts “ and forthwith return to the seller three-fourths thereof,” “to meet the requirements” of the Act 2d July, 1864, (13 Stat. L., p. 377, • $ 8,) (which act provided that the Treasury should purchase such products at three-fourths of the value thereof) was valid, and continued operative until the issuance of the proclamations declaring that hostilities had ceased and commercial intercourse might be resumed.
III. It appears that an action will lie against the Government to recover back money paid into the Treasury where during the rebellion cotton was brought in from a point within the insurrectionary districts and conveyed by bill of sale from the owner to a Treasury agent at New Orleans, who, pursuant to the Treasury Regulations in such cases, returned three-fourths to the owner and retained one-fourth for the Government, both owner and agent being at the time ignorant of the fact that a proclamation declaring hostilities at an end, and authorizing a renewal of commercial intercourse, had been issued.
The Reporters’ statement of the ease:
This case has singularly divided two courts. In tlie court below a re-argument was ordered on tlie principal question, whether a proclamation .of the Executive takes effect from the day of its date or the time of its promulgation-; and the court then stood equally divided, one judge being prevented, by illness from taking part in the decision. For the purposes of an appeal, judgment was entered dismissing the petition, and an appeal was taken. In the Supreme Court a re-argument was also ordered on the same point, and the court then stood five for reversal and four for affirmance, with one of the majority merely concurring in the conclusion that the judgment should be reversed.
The following are the material facts found by the court below:
On the 9th day of May, 1865, the Secretary of the Treasury, with the approval of the President, adopted and promulgated, to take effect on the 10th day of that month, the following *167“Amended regulations for tbe purchase of the products of the insurrectionary States on Government account
X. Agents stall be »x>pointed by the Secretary of- the Treasury, with the approval of the President, to purchase for the United States, under special instructions from the Secretary of the Treasury, products of States declared to he in insurrection, at such places as may from time to time he designated hy the Secretary of the Treasury as markets or places of purchase.
III. The operations of purchasing agents shall he confined to the single article of cotton, and they shall give public notice at the place to which they may he assigned that they will purchase in accordance with these regulations all cotton not captured or abandoned which may he brought to them.
IV. To meet the requirements of the eighth section of the Aot July 2,1864, the agents shall receive all cotton so brought and forthwith return to the seller three-fourths thereof, which portion shall he an average grade of the whole, according to the certificate of a sworn expert or sampler.
V. All cotton purchased and resold hy purchasing agents shall he exempt from all fees and all internal taxes, and the agents selling shall mark the same “free, ” and furnish to the purchaser a bill of sale clearly and accurately describing the character and quantity sold, and containing a certificate that it is exempt from taxes and fees as above.
The proclamation of the President bearing date June 24, 1865, was not published in newspapers until the morning of the 27th day of that month, nor was it published or promulgated anywhere or in any form prior to said last-named day, unless its being sealed with the seal of the United States in the Department of State was a publication or promulgation thereof.
On or about the 18th of June, 1865, the claimant caused to be shipped at some point on Eed Eiver, (which river is west of the Mississippi Eiver,) on board the steamboat Bella Donna, and consigned to the said Cutler as purchasing agent of the Government, 476 bales of cotton, with which on board the said steamboat arrived at New Orleans on the following 24th of June. At that time no shipments of cotton from west of the Mississippi Eiver to New Orleans were allowed, except such as were consigned to such purchasing agent.
On the 26th of June, 1865, the claimant executed a bill of sale to the said Cutler as purchasing agent of the said 476 bales of cotton, and on the same day the said Cutler executed to the claimaint a bill of sale back of 357 bales of the same cotton, and retained in his possession the remaining 119 bales thereof, which were sold by the agents of the United States; and the net *168proceeds thereof were $9,955.66, which sum was paid into the Treasury of the United States. When this sale and resale toot place neither the claimant nor the said Cutler had any knowledge or information of the proclamation aforesaid.
Mr. P. Phillips (on the re-argument) for the claimant, appellant :
This transaction took place after hostilities had ceased. Kirby Smith, who commanded west of the Mississippi, surrendered on the 26th May, 1865. Lee had already surrendered on 9th April, and Johnson on 26th April. The war was in jjoint of fact ended. By the fifth section of the Act 13th July, 1861, (12 Stat. 257,) the President was authorized to proclaim “ that the inhabitants of a State, or any part thereof, where such insurrection exists, are in state of insurrection against the United States;” and thereupon “all commercial intercourse” between such inhabitants and the citizens of the rest of the United States “shall cease and be unlawful so long as such condition of hostility shall continue.” This section further vests in the President the right to license such intercourse under rules and regulations to be prescribed by the Secretary of the 'Treasury. By the eighth section of the Act 2d July, 1864, (13 Stat., 377,) the Secretary, with the approval of the President, was authorized to purchase for the United States the products, of the States declared to be in insurrection at three-fourths the value thereof in New York. On the 10th May, 1865, the President issued his proclamation that “armed resistance to the authority of this Government may be regarded as virtually at an end.” (13 Stat. L., 757.) Wo thus see that prohibition of commercial intercourse provided for by the Act of 1861, continued only so long as hostilities existed, and was to end when they ceased, and that the proclamation of the President declared that they had ended on 10th May, 1865.
The ground for taking from owners of property the one-fourth of its value was' that the condition of hostilities deprived them of the right to sell it, and the one-fourth was the consideration for the special privilege to do so. As soon as hostilities ceased the rights of commercial intercourse returned, and there was no longer any consideration upon which the claim of the one-fourth could be rested. To give full effect to this result of the *169law two proclamations were issued; the first on the 13th of June, I860, removing all restrictions on “internal, domestic, and coast-wise trade, and upon the removal of products of States heretofore declared in insurrection “ east of the Mississippi Elver.” (13 Stat., 763.) The second was issued on the 24th June, 1865, containing similar provisions as to purchase and removal of products of States “ lying west of Mississippi Eiver.” (13 Stat., 769.) We thus see that these proclamations were issued under the requirement of the Act of 1861, and are but a formal notification that the prohibition under that act no longer existed. In other words, that hostilities no longer continued.
The purchase on which the Government agent claimed the one-fourth was made in New Orleans on the 26th June, or two days after the fact had been officially determined that hostilities had, ceased, and the legal consequence announced that commercial restrictions were annulled. It is very true that the transaction was made in ignorance of the proclamation. Both the parties contracted- under the impression that the state of hostilities still continued, and that the restrictions on trade, still existed. Here was a mistake of fact against which the principles of equity would relieve. — Hunt v. Roúsmanier, (8 Wheat., 174; 1 Pet., 1.)
Here is a proclamation not imposing a penalty, but relieving from a forfeiture; and it is supposed to have no effect because it w7as not published or promulgated until the 27th June. I know of no act of Congress which requires this publication as a condition of validity, and if publication is to be made the test, then it must be an official publication, and none other could be recognized. Thus, through official neglect in delaying publication, a state of hostility produced by war might be continued, though the war had in fact ended and the President had done all that the.law required him to do in fixing its termination. The act of the President in discharging the duty imposed on him by the law stands on the same footing as if this declaration had been made by an act of legislation; and it will not and cannot be disputed that an act of Congress on this subject approved on 24th June would be operative from its date. This is the rule even where penalties or increased burdens are imposed, though in fact it was impossible to know of the existence of the law when they were incurred.
*170This common-law rule is modified in the civil law, which, requires promulgation and gives time for knowledge, according to the distance of parties from the seat of legislation. But in both systems the rule is an arbitrary one, and under neither would a party be permitted to show in his defense that it was impossible from, the situation in which he was placed to have known of the existence of the law.
An exceptional case is to be found in 1 Paine,. 23, in which. Judge Livingston reasoned to the conclusion that the embargo law ought not to be so construed as to condemn a vessel that sailed from a port where the law was not known to have been passed. So this court, in passing on the question as applied to a treaty, held that its ratification as between the governments had relation back to the date, but as to individuals it would be manifestly unjust to permit such relation to divest a title already vested. — Haver v. Yalcer, (9 Wall., 35.) But, as we have said, this is not a case where a penalty is imposed, and where natural feelings of justice would influence the court to seek escape from inflicting punishment on parties for an act which they believed to be innocent. To the contrary, giving effect to this act from its date restores the party to a right which in justice he is entitled to, and which the law of the land intended to confer upon him.
All that has been urged on the other side is, that while the proclamation lies in the State Department, though signed and sealed, yet it is subject to revocation by the President at any time before he has it published. This may be. But when it is not revoked it must take effect, not from the date of publication, but from the date of its 'application. A judgment of a court may during the term be set aside or modified, but if this is not done it is not less a judgment on the day when it was rendered.
Mr. Assistant Attorney-General Hill (on the re-argument) for the United States, appellees:
Did the proclamation take effect from its date, or from the time when it was promulgated ? There is no statute bearing on this subject, or making any regulations in regard to the manner in which official proclamations shall be made by the Executive Department, and the practice which has existed from the foundation of the Government seems to have been copied from the *171mode of issuing proclamations existing in England. There, every proclamation is issued under the great seal, and it is stated that u every proclamation ought to be sub magno sigillo Anglicce, and it is most proper and safe to be so pleaded.” (Com. Dig., Prerogative D., 3.)
But if the great seal is essential in England to a royal proclamation, (which may be doubtful,) there is nothing beyond custom which renders it necessary that the President’s proclamations should be under the great seal of the United States, although it may be eminently proper for the great seal to be affixed thereto.
Aproelamation would seem to be complete when signed by the President and promulgated, but until properly promulgated a Xiroclamation can have no force whatever. Not only is it up to that time within the power of the President to annul it, but until promulgated, from the very nature of the transaction, it must be entirely inchoate; as much so as if unsigned. Its office is to announce to the country a certain fact, and so long as it remains unannounced, in the possession of the President or of the Secretary of State, under his direction, it is as incomplete as a commission unsigned, or a diplomatic or other letter never sent. Until it is published it is no proclamation at all.
In the absence of all other evidence, a proclamation will undoubtedly be presumed to have been promulgated on the day of its date, as it wdll be presumed that a deed or other instrument was delivered on the day of its date, and so takes effect from that day. But this is a presumption only, which may be removed by evidence that it was published on some subsequent day, as in the present case. — United States v. Le Baron, (19 How., 73.)
The case of a statute is not applicable. Statutes require the assent both of the executive and legislative departments of the Government; and when a statute passed by the legislature has been approved by the Executive, its enactment is complete and it can be altered only by a subsequent statute enacted with the same formalities. The same is true in respect to the commission of a public officer, which it has been decided need not be delivered, but is complete on receiving the signature of the President, when it becomes the duty of the Secretary of State to affix the great seal.
*172But as the essential and effective part of the issuing of a proclamation is its publication, until it is published it can have no force or effect whatever.
Mr. Justice Swayne
(with whom concurred the Chief Justice and Clifford and Strong-, JJ.)
delivered the opinion of the court:
This is an appeal from the judgment of the Court of Claims. The decision was against the petitioner, and he has brought the case here for review. The only inquiry presented for our consideration is when tlie proclamation, which is the hinge of the controversy, took effect. The question arises on the third finding of the Court of Claims, which is as follows: “ The proclamation of the President of June .24,1865, was not published in the newspapers until the morning of the 27th of that month ; nor was it published or promulgated anywhere, or in any form,, prior to said last-named day, unless its being scaled with the seal of the United States, in the Department of State, was a publication or promulgation thereof.”
There is no act of Congress, and nothing to be found in American jurisprudence, which bears very directly on the subject. In the English law the instrument is thus defined: “Proclamation — proclamatio—is a notice publicly given of anything whereof the king thinks fit to advertise his subjects. And so it is used, 7 Rich. 2, cap. 6.” (Cowel’s Law Dic.)
Proclamations for various purposes are mentioned in the English authorities, but it could serve no useful end particularly to refer to them. (2 Jacobs’ Law Dic., 311.) In England they must be under the great seal. (7 Comyn., 31.) If their existence is intended to be denied, the proper plea is nul tiel record. — Kely v. Manning, (Cro. Car., 180;) Howard v. Slater, (2 Roll. R., 172.) It is a part of the king’s prerogative to issue them. (1 Black. Com.; 70.) It is a criminal offense to issue them without authority. (Bro. Ab., fol. 160; 17 Viner, 199.) By the 31 of Hen. VIII, ch. 8, it was enacted that the king, with the advice of his council, might issue proclamations denouncing pains and penalties, and that such proclamations should have the force of acts of Parliament. This statute, so fraught with evil to the liberties of the subject, was repealed a few years later in the successful reign of Edward VI, and during *173bis minority. A very careful and learned writer says: <CA proclamation must be under the great seal, and if denied, is to 1)6 tried by the record thereof. Tt is, of course, necessary to be published, in order that the people may be apprised, of its existence, and may be enabled to perform the injunctions it contains. In the absence of any express authorities it should seem that if the proclamation be under the great seal it need not be made by any particular class of individuals or in any particular manner or place, and that it would suffice if it were made by any on,e under the king’s authority in the market-place or public street of each large town. It always appears in the gazette.” (Chitty on Prerogatives, 106.) This is the only authority on the subject here under consideration which our-researches have enabled us to find. The writer refers to no other author and to no adjudicated cases in support of his views. The third section of the Documentary Evidence Aet (8 and 9 Victoria, chap. 113) declares that the copy of a proclamation purporting to be printed by the Queen’s printer-shall be sufficient proof of the existence of the original. Under the circumstances it may be well to look to the analogy afforded by the promulgation of statutes. At the common law every act of Parliament, unless a different time were fixed, took effect from the first'day of the session, no matter how long the session or when the aet was passed. This rule was applied to acts punishing offenses of all grades, including those which were capital, and even attaints! The authorities on the subject are learnedly collected by Mr. Justice Story in the case of the Brig Ann, (1 Gallison, 64.) Such was the law in England until the passage of the 33d George III, ch. 13, which declared that the royal assent should be indorsed, and that the act should take effect only from that time.
The Aet July 27, 1789, see. 2, declares that whenever a bill, order, resolution, or vote of the Senate and House of Representatives has been signed by the President, or not having been returned by him with his objections, shall have become a law, it shali forthwith thereafter be received by the Secretary of State from the President: and that whenever a bill, order, resolution, or vote — having been returned by the President with his objections — shall have been approved by two-thirds of both Houses of Congress, and become a law, it shall be received by the Secretary from the President of the Senate, or. Speaker of the *174House of Bepresentatives, in whichsoever House it shall have been last approved; and it is made his duty carefully to preserve the originals. The first section of the Act April 20,1818, directs that the Secretary shall publish all acts and resolutions currently, as they are passed, in newspapers. The fourth section provides that he shall cause to bo published at the close of every session of Congress copies of the acts of Congress at large, including all amendments to the Constitution adopted, and all public treaties ratified, since the last publication of the laws.
Both those acts are silent as to proclamations, and we have been unable to find any provision in the laws of Congress touching the manner of their original promulgation or their subsequent printing and preservation. Numerous acts were passed during the late war authorizing proclamations to be issued, but they are silent upon these subjects. In the Act July 10, 1881, under which the proclamation here in question was issued, the language is, “itinay and shall be lawful for the President by proclamation to declare,” &c. (12 Stat., 257.) In the Act June 22, 1861, the language is, “ the President shall from time to time issue his proclamation.” (12 Stat., 268.) In the Act December 31,1862, the language is the same as in the act first referred to. (12 Stat., 633.) In the Act March 3,1863, the language is, “the President shall issue his proclamation declaring,” &c. (12 Stat., 735.) We have nowhere found in the legislation of Congress any material departure from this formula, nor anything further in any wise affecting the question before us.
We know that the established usage is to publish proclamations with the laws and resolutions of Congress currently in the newspapers, and in the same volume with those laws aud resolutions at the end of the session.
There is no statute fixing the time when acts of Congress shall take effect, but it is settled that where no other time is prescribed they take effect from their date. — Mathews v. Zane, (7 Wheat., 211.) Where the language employed is “from and after the passing of this act,” the same result follows. The act becomes effectual upon the day of its date. In such cases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible.— Wellman’s Case, (20 Vermont, 653.) The subject is there examined with learning and ability. (See, also, *175
How’s Case, (21 Vermont, 619;) The Ann, (1 Gall., 62;) Arnold v. The United States, (9 Cranch, 104;) 1 Kent’s Com., 457.
Publishing by outcry in the market-place and streets of towns, as suggested by Chitty, has, we apprehend, fallen into disuse in England. It is certainly unknown in this country. While it is said the proclamation always appears in the Gazette, he does not say that it cannot become operative until promulgated in that way. As no mode of publication is prescribed, and those suggested will answer, we do not see why applying the seal and depositing the instrument in the office of the Secretary of State may not be held to have the same effect. The President and Secretary have then completed their work. It is there amidst the archives of the nation. The laws of Congress are placed there. All persons desiring it can have access and procure authenticated copies of both. The President signs and the Secretary of State seals and attests the proclamation. The President and Congress make the laws. Both are intended to be published in the newspapers and in book-form. Acts take effect before they are printed or published. Why should not the same rule apply to proclamations ? We see no solid reason for making a distinction. If it be objected that the proclamation may not then be known to many of those to be affected by it, the remark applies with equal force to statutes. The latter taking effect by relation from the beginning of the day of their date, may thus become operative from a period earlier than that of their approval by the President, and indeed earlier than that at which they received the requisite legislative sanction. The legislative action may all occur in the latter part of the day of their approval. The approval must necessarily be still later. It may be added, as to both statutes and proclamations, that, even after publication in the newspapers, there are in our country large districts of territory where actual knowledge does not usually penetrate, through that or any other channel of communication, until a considerably later period. It will hardly be contended that proclamations should take effect at different times, in different places, according to the speedier or less speedy means of knowledge in such places respectively.
But the gravest objection to the test of publication contended for by the defendant in error remains to be considered. It would make the time of taking effect depend upon extraneous evidence, which might be conflicting, and might not be pre*176served. The date is an unvarying guide. If that be departed from, tbe subject may be one of indefinitely recurring litigation. Tbe result in one case would be no bar in another, if the parties were different. Upon whom would rest the burden of proof, the party alleging or the party denying the fact of publication 1 If, after a lapse of years, the proof were that a proclamation purporting to be published by authority was seen at a specified time in a newspaper, but the paper were lost and its date could not be shown, would the proclamation be held to taire effect only from the time it was so seen by the witness Suppose in the distant future no proof of publication could be found, would all the rights which had grown up under it be lost, unless protected by the rule of limitations 1 Would the instrument itself be a nullity Would an exemplified copy from the x>roper office be an insufficient answer to tbe plea of nul tiél record f According to the views maintained by the counsel for the plaintiff in error, all these questions must be answered in the affirmative. The only way to guard against these mischiefs is to apply the same rule of presumption to proclamations that is applied to statutes, that is, that they had a valid existence on the day of their date, and to permit no inquiry upon the subject. Conceding publication to be necessary, the officer upon whom rests the duty of making it should be conclusively presumed to have promptly and properly discharged that duty. If the proclamation here involved were a resolution or an act of Congress, no such question could arise. That “ a proclamation,” * * “if denied, is to be tried by the record thereof,n and that in such case the proper plea is nul tiel record, seems to be conclusive upon the subject.
It would be unfit and unsafe to allow the commencement of the effect whenever the question arises, whether at a near or a distant time, to depend upon the uncertainty of parol proof, or upon anything extrinsic to the instrument itself, as found in the archives of the nation.
The judgment of the Court of Claims is reversed, and the case will be remanded with directions to enter a judgment in favor of the appellant.
Mr. Justice Davis. I concur in the judgment in this case.
*177Mr. Justice Hunt,
(with whom concurred Miller, Field, and Bradley, JJ.,)
dissenting:
By the Act July 2, 1864, (13. Stat. L., p. 377, § 8,) provision was made for the transmission and sale of cotton from the in-surrectionary States. Among other things it was provided that one having cotton in the States west of the Mississippi might transport the same through the lines of the United States armies to the city of New Orleans, and there deliver the same to an agent of the United States, who should buy the same and return to the person producing the cotton three-fourths of the market-value thereof in the city of New York. In substance this act permitted the introduction and sale of cotton from an enemy’s country, subject to a tax of 25 per cent, on the value thereof.
On the ISth of June, 1805, the claimant caused to be shipped to New Orleans, from some point west of the Mississippi River, 476 bales of cotton, and consigned the same to the purchasing agent of the Government. This cotton reached New Orleans on the 24th day of June. On the 26th the owner executed a bill of sale of the same to the Government agent, who returned to him 367 bales, being three-fourths thereof, and retained 119 bales, being one-fourth, under the provisions of the act referred to. At this time neither the claimant nor the agent had' any knowledge of the proclamation now to be mentioned. This proclamation removed the restrictions upon the trade and intercourse from the States west of the Mississippi, and restored the former relations between the States. It was a proclamation by the President, bearing date June 24th, 1865, in the usual form, and was made by authority of the Congress of the United States. It is headed : “ By The President of the United States: A Proclamation.” After making various recitals it proceeded : “Now, therefore, be it known that I, Andrew Johnson, President of the United States, do hereby declare,” &c. It closed thus:
“ In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington, this twenty-fourth day of June, in the *1783’ear of our Lord one thousand eight hundred and sixty-five, and of the Independence of the United States the eighty-ninth,
“ANDREW JOHNSON.
“ By the President:
“ W. Huntek, Acting Secretary of State”
The record states, as a fact undisputed, that until the 27th day of June this proclamation “ was not published anywhere, or in any form, unless its being' sealed with the seal of the United States, in the Department of State, was a publication or promulgation thereof.”
The question is then presented, Does the fact that this document had on it the seal of the United States, and that it was in the Department of State, give it the vitality of a proclamation %
If it had vitality or existence on the 24th day of June, the Government ag'ent had no authority to retain the 119 bales of cotton by virtue of the law of 1864. If it had not existence on that day, he had authority and the present claim is without foundation.
What is a proclamation ? It is to cry aloud, publicly to make known. One may proclaim, as of old, by the sound of trumpet, or by voice, or by print, or by posting; but not by silence. A proclamation maybe published in the newspapers, or scattered by writing, or in any demonstrative manner, but it cannot be published by a deposit in a place to which the public have no access.
The lexicographers agree in their definition of a proclamation. Webster gives it thus:1. A proclamation by authority; official notice given to the public. 2. In England, a declaration of the king’s will openly published.” “ 3. The declaration of a supreme magistrate made publicly known.” In each of these definitions it will be perceived that publicity is an important ingredient. “ Notice given to the public,” “ openly published,” “ made publicly known,” are significant expressions. They give it as an essential element of its character that it should be openly and publicly made known. The expounders of the law use nearly the same language as the lexicographers. . In Jacobs’ Law Dictionary is this language: “ Proclamation — a notice publicly given of anything whereof the king thinks fit to ad*179vertise his subjects.” Iu Bacon’s Abridgment (Prerogative 8) it is said : “ The king, by his prerogative, may, in certain cases and on special occasions, make and issue out proclamations for the prevention of offenses, to ratify and confirm an ancient law, or, as some books express it, 1 quo aü terrorem populi,7 to admonish them that they keep the law on pain of his displeasure.” And again, u The king, by his proclamation, may enforce the execution of the laws, and, therefore, if the king, by proclamation, prohibits that which was before unlawful, the offense afterward will be aggravated.” (Ib.) An unknown and secret act of the king could not legally add to the enormity of a public offense. In his twelfth volume (p. 76) Coke gives a full statement of what the king may do by proclamation, and what he may not do. Chitty on Prerogative thus lays it down: “ A proclamation must be under the great seal, and if denied, is to be tried by the record thereof. It is, df course, necessary that it be published in order that the people may be apprised of its existence, and may be enabled to perform the injunctions it contains. In the absence of any express authorities on the point, it should seem that if the proclamation be under the great, seal it need not be made by any particular class of individuals, or in particular manner and place, and that it would suffice if made by any one, under the king’s authority, in the market-place or public streets of each large town. It always appears in the gazette.” (Chitty on Prerogative, 100.) This authority clearly asserts the necessity of publication. It always appears, he says, in the gazette. It would suffice if made in the marketplace or public streets.
After a careful examination of the law-books, of Allen on the Poyal Prerogative, ITearne on the Government of England, and several similar works, it is safe to say that no authority can be found contradicting this statement of Chitty. It is assumed, generally, as resting on the nature of the instrument and the general principles of law, that there must be a publication, and nowhere is an intimation to the contrary to be found.
In the case before us no publicity was given to the paper. It was in no gazette, in no market-place, nor in the street. It was signed by the President and the Acting Secretary of State, and deposited in the Secretary’s office. It does not appear that a single person besides the President and Secretary was aware of its existence. A deposit in the Office of State is not notice *180or publicity. We are not to confound tbe solemnity or the security of a resting-place in the archives of the State with publicity. No doubt the place of deposit was suitable and appropriate, but if promulgation is founded upon public knowledge or notice, it is difficult to understand how it is furnished by this fact.
Neither did the seal add to its character, except to authenticate it. Comyn says that every proclamation ought to be Usubmagno sigillo Anglicce(Prerogative D. E., 3.) As evidence of its regularity and authenticity the seal is well, but it adds nothing to its i>ublicity. It conveys notice to no one. It gives no public knowledge of its existence.
It is argued that a statute takes effect from the date of its approval, unless a different time is fixed by law. As a general rule this is true. It is further said that, by relation, it covers the whole of the day of its approval. This, also, is generally true. It has often been decided, however, that where justice requires it the true time of its passage may be shown, even to the hour of the day. (11 Conn. R., 17; 1 Cal. R., 108 ; Gardner v. Collector, 6 Wall., 491.)
In the case of Welman, (20 Vt. R., 653,) cited to sustain the general rule, the qualification here stated is recognized. The statement of Lord Mansfield is given, (3 Bur., 1423,) in which it is stated that, when necessary, the law does examine into fractions of a day. He says that “ he does not see why the very hour of its passage may not be shown, when it is necessary and can be done.”
This principle, however, does not aid in the present case. When a bill has passed both Houses and been signed by the President, and deposited in the proper jfface, the legislative and executive power is exhausted. The last act of power has been exercised. The present is more like the case of a deed, which takes effect from its delivery. It may be signed, sealed, and acknowledged by the grantor, but, as a general rule, it has no effect while it remains in his possession; nor is the effect different if it be left in the hands of the notary taking the acknowledgment.
It is said, again, that a proclamation is a record, and that its existence is to be determined upon the plea of nul tiel record. So is a judgment a record. So is a statute; and the same may be said of a deed. The document itself must be proved by the *181production of the record; but, in each of the cases mentioned, the time at which it takes effect may be established by parol. In each case its effect is presumptively of the day of its date, but the truth may be shown when the fact is otherwise, and even to fractions of a day when justice requires it. (Auth. Sup.)
It is said, also, that the introduction of extraneous evidence of the time of publication would cause great confusion. The argument of inconvenience is never a satisfactory one. It is not perceived how it would produce more difficulty in this case than in the case of statutes. A proclamation is usually issued in fact at its date. It is presumed to be so issued. The date may be erroneous. It may have been issued before it bears date. It may have been issued afterward. The important rights of persons and of property affected by it cannot be allowed to be overborne by the argument of inconvenience. It would produce much greater inconvenience, as well as injustice, to public interests and to private rights, that a rule of law or of property should be fixed as of a time which it should be beyond the power of the most vigilant to ascertain. Proclamations by the king alone, or by the king by the authority of Parliament, or by the President by the authority of Congress, or as part of the executive power, embrace an immense range of subjects. Knowledge of their contents, or the means of obtaining it, is of more importance than the inconvenience that may be supposed to arise from leaving the time of publication to be ascertained by actual proof.
It is suggested that the case of Marbury v. Madison is in conflict with the conclusions stated. (1 Cranch, 137.) In that case Mr. Adams had appoined Mr. Marbury and others justices of the peace of the District of Columbia, but their commissions had not been delivered. Afterward Mr. Madison, Secretary of State, refused to deliver them, and Mr. Marbury applied for a mandamus to compel such delivery. The nominations had been confirmed by the Senate, and the commissions had been signed by the President, and the seal of the United States affixed by the Secretary of State. The court held that when the last act of authority on the part of the Executive had been completed his power was at an end, and the right to the office was perfect. This last act was declared to be the signature of the commission.
The want of applicability of this authority to the case before *182us is manifest. There the last authority of the President had been exercised. His power was exhausted. Here he had not, on the 24th of June, exercised the last act of authority, nor did he exercise it until the 27th of that month. It is not doubted that when he had exercised it, and had published his proclamation, his power was at an end, the instrument was perfect, and the rights of all parties became fixed. But until he ‘gave life to his proclamation, by some public or official notice of its existence, it was inchoate merely. The last act had not been performed.
The learned counsel who argued for the appellant did not deny that until publication had been made the proclamation was revocable by the President. If the view we cake is correct, it certainly remained in his power and under his control for alteration or revocation until publication was made. A revocable law is an anomaly; it is a solecism, an absurdity. If it is a law it is not revocable; if it is revocable, it is not a law. The elements of change and of certainty cannot exist in the same thing at the same time. Until the 27th of June the proclamation was not beyond the power of change. Until that day, therefore, it could not be a law.
It has been suggested that although this proclamation did not come into existence until the 27th of June, that after it did take effect it related back to the 24th of that month. Such a' principle is unknown to our laws. It involves the essential effect of a retroactive law. That a man should, on the 24th of June, perform an act lawful and commendable, that by an official declaration on the 27th this lawful act should be rendered unlawful at the time ic was performed, and punishable, is in violation of every idea of constitutional law and of common right. When applied to criminal law such an act is ex post facto, and retroactive when applied to civil cases.
An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or which imposes additional punishment to that then prescribed. — Carpenter v. Pennsylvania, (17 How., 546.)
In Fletcher v. Peck, (6 Cranch, 87,) it was decided that an act of the legislature, by which a man’s estate shall be seized for a crime, which was not declared to be an offense by some previous law, was null and void.
In Cummings v. Missouri, (4 Wall., 277,) it was held that *183although the prohibition of the Constitution against ex post facto laws is aimed against criminal cases, it cannot be evaded by giving a civil form to that which is in substance criminal. The passage of an act imposing a penalty upon a priest for the performance of an act, innocent by law at the time it was committed, was, therefore, held to be void.
The principle is so familiar that it is not necessary to accumulate authorities. The proposition we are discussing falls directly within the prohibition.
We are not called upon to decide what would amount to a sufficient publication, or in what manner the required notice may be given. We are simply to decide whether, upon the facts before us, a legal publication of the proclamation had been made on the 21th day of June, 1865.