concurring in part and dissenting in part.'
I concur that the appeal was timely and that this court has jurisdiction. I dissent from the court’s approval of the use by the Government of defendant’s former conviction of an offense for which he had been granted a full pardon by the President. The conviction was used for the purpose of impeaching defendant’s credibility as a witness in his own behalf. To permit the pardoned crime thus to be used on a trial for an entirely different offense seems to me to be inconsistent with the nature and effect of a full Presidential pardon as described in Supreme Court cases, though the precise question before us has not been decided by that Court.
There is involved the exercise of one of the few powers of the President specifically set forth in the Constitution, as follows: *609“ * * * he gjxaii have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” (U.S.Const. Art. II, § 2.)
In commenting upon this provision in United States v. Wilson, 1833, 7 Pet. 150, 32 U.S. 150, 8 L.Ed. 640, Chief Justice Marshall said:
“ * * * As this power had been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.” (7 Pet. at page 160, 32 U.S. at page 160.)
Only a procedural question was there decided, having to do with the method of bringing a pardon before the Court. The opinion points out, however, that a pardon “may be absolute or conditional.”
The one now before us states in its operative part that it is “a full pardon.” There is a recital clause that the persons referred to ought to have restored to them the “political, civil, and other rights of which they were deprived by reason of such conviction and which may not be restored to them unless they are pardoned”; but this motivation is not a limitation upon the legal effect of the “full pardon” granted. Accordingly, any limitations we now attach apply to the exercise to its fullest extent of the constitutional power itself. The sweeping consequences of such exercise are described by the Supreme Court in Ex parte Garland, 1866, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366, and other cases, to accord with the benign nature of this prerogative of the President. In Ex parte Garland1 Congress by statute had prohibited anyone from being admitted as an attorney to the bar of the courts of the United States unless he should swear he had never voluntarily borne arms against the United States, or, inter alia, supported any authority within the United States hostile thereto. A Presidential pardon of such activities had been granted to Mr. Garland. The Court held the act of Congress to be unconstitutional and said this view was strengthened by a consideration “of the effect of the pardon” and “the nature of the pardoning power of the President,” which it described in part as follows:
“* * * This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. [2]
“Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence 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 offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” (4 Wall, at pages 380-381, 71 U.S. at pages 380-381, 18 L.Ed. 366.)
This broad approach has several times been emphasized by the Supreme Court, in United States v. Klein, 1871, 13 Wall. 128, 80 U.S. 128, 20 L.Ed. 519; Osborn v. United States, 1875, 91 U.S. 474, 23 L.Ed. 388; *610Boyd v. United States, 1892, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077; Young v. United States, 1877, 97 U.S. 39, 24 L.Ed. 992; and see Ex parte Wells, 1855, 18 How. 307, 315, 59 U.S. 307, 315, 15 L.Ed. 421. If it be thought that in Ex parte Garland and other cases decided against the background of the War between the Sections3 the Court sought to ameliorate the stresses consequent upon the conflict, the truth is the scope accorded the pardoning power in both the decisions and language of the Court was deemed required by the nature of the power apart from the immediate occasion for its exercise. That this nature found congenial application in no way detracts from its permeating and benign quality then or now, from which we should not detract. “Pardon includes amnesty. It blots out the offence pardoned and removes all its penal consequences.” United States v. Klein, 13 Wall, at page 147, 80 U.S. at page 147, 20 L.Ed. 519. In Carlisle v. United States, 1872, 16 Wall. 147, 153, 83 U.S. 147, 153, 21 L.Ed. 426, the power is again described as “that benign prerogative of mercy.” Reference is also made to it, “in the language of the cases,” as “effacing the offence, blotting it out,” “as though it had never existed.” (Carlisle v. United States, supra, 16 Wall, at page 153, 21 L.Ed. 426.) In Osborn v. United States, 91 U.S. at page 477, 23 L.Ed. 388, it is said the pardon obliterates the offense in legal contemplation.
More than a century before the adoption of the Constitution the Lord Chief Justice of England, in 1679, in Reading’s Trial, 7 Howell’s State Trials 259, 296, had said:
“ * * * if he hath his pardon, it doth take away as well all calumny as liableness to punishment, and sets him right against all objection. So, you know, after an act of general pardon, it is a scandal to reproach a man for that which he is thereby pardoned for. * * *”
Blackstone (4 Comm. 402) had stated that the effect of the pardon is to give a new credit and capacity, language which the Supreme Court repeated in Ex parte Garland. Accordingly it cannot be said there was a common law rule requiring the constitutional provision to be construed to limit the effect of a full pardon as the court now does.
The President in any given case may grant the pardon in limited or conditional terms (Ex parte Wells, supra; United States v. Wilson, supra; United States v. Klein, supra, 13 Wall, at page 147, 20 L.Ed. 519; see, also, 18 U.S.C. § 3570). It may be made specific as to effect; for example, to restore civil rights, or to remit fines or other penalties. The one before us is not of that character. It is “full.” In these circumstances we cannot speculate the President intended less than the law attaches to a full Presidential pardon. Further, were we to speculate as to a specific intent we should prefer to think the President intended the broad effect described in Supreme Court cases rather than the narrower content given, for example, in 22 Ops.Att’y Gen. 36 (1898). In any event, action taken by the President pursuant to an express constitutional provision is not to be limited by a prior construction of the exercise of the power which might be found to be erroneous.(
The views ably set forth in the opinions of Judge Kirkland, U. S. v. Richards, D.C., 1950, 91 F.Supp. 323, in the court below, and of Judge Washington for this court, rest primarily upon the circumstance that the pardon does not erase the fact that the former crime was committed. The conviction, it is said, being evidence of untrustworthiness inherent in the commission of the crime, remains evidence of such untrust-worthiness notwithstanding the pardon. See Williston, Does A Pardon Blot Out Guilt?, 28 Harv.L.Rev. 647 (1915). This distinguished'author and teacher denies that the pardon serves to blot out guilt or “improves a man’s character.” Therefore, it is said, the conviction remains evidence against credibility. But the question is not whether the pardon literally erases the fact that the crime was committed or whether it necessarily improves the character of the recipient, though it well might do the latter. The question rather concerns the use which *611can be made of the conviction after the President has pardoned the crime. There is no dispute it can no longer be used against a person’s competency to be a witness. Boyd v. United States, 1892, 142 U.S. 450, 453, 12 S.Ct. 292, 35 L.Ed. 1077. This is so though the pardoned crime remains a fact. That fact is simply no longer available as a bar to competency. The policy of the law attaches this effect to the pardon. The related effect with respect to credibility is, paradoxically, retained. The reason must be that while dishonesty is assumed to be erased by the pardon sufficiently to restore competency as a witness, yet it is not sufficiently erased as evidence of dishonesty in testifying. This draws too fine a line to support a distinction which I can accept in the light of the generous lines drawn by the Supreme Court in delineating the nature and quality of a full Presidential pardon. If in the eyes of the law (Ex parte Garland, supra) the pardon serves to blot out the crime, and, as all authorities agree, restores competency as a witness, the old offense should no longer be available in the administration of the criminal law to impeach credibility.4
There are indeed cases, such as Baum v. Clause, 1843, 5 Hill, N.Y., 196, and others, relied upon by the majority, where it is said “the crime still goes to the credit of the witness.” Yet in the same case the New York court refers to the view of Blackstone that the effect of the pardon is to give a “new credit” as well as a new capacity. 4 Comm. 402. See, also, the references to Bacon, at 5 Hill 198. In Curtis v. Cochran, 1870, 50 N.H. 242, also cited by the majority, it is said “A person convicted of an offence known in law as infamous, is incapacitated to be a witness, because, when his guilt is established by the conviction, his general character for truth is shown to be so bad that his testimony would be useless or dangerous,” citing Greenleaf and Starkie. (50 N.H. at pages 244-245.) The court proceeded to hold that though a pardon removes this disability, presumably because dishonesty can no longer be assumed, nevertheless the conviction is still available to attack honesty. Of course the question of credit remains for the jury; but it does not follow that after the pardon the former conviction should remain one of the factors which otherwise might be considered by the jury on that question.
The statement in In re Spenser, C.C.D. Or., 1878, 22 Fed.Cas. pages 921, 922, No. 13,234, that “The effect of the pardon is prospective and not retrospective” does not aid the majority. The trial under review was subsequent to the pardon. Only a prospective effect is claimed for the action of the President, namely, denial of use of the pardoned crime in a subsequent trial for a different crime. Furthermore, if, as the majority quotation from In re Spenser also states, “The offender is purged of his guilt, and thenceforth he is an innocent man,” it is hard to follow the reasoning that because the past “is not obliterated” and “the fact that he had committed the crime” is not wiped out, the guilt which the court says is purged may yet be treated as not purged and the innocence resulting from the pardon may yet be used as though it were guilt.
Some additional comment upon authorities cited by the majority might be useful. I read Rookwood’s Case, Holt 683, 685, 90 Eng. Reprint 1278 (1696), as actually holding only that competency was restored by a pardon, the only question there before the court, and as to which all authorities agree. It seems to me, further, that United States v. Jones, 1824, Fed.Cas. No. 15493, 2 Wheeler Crim.Cas., N.Y., 451, dealt with what the court construed to be a pardon *612granted only for the purpose of enabling an important witness to testify. The statement of the court that the credibility of the witness was nevertheless for the jury should he read in that context. It is true also of Commonwealth v. Green, 1822, 17 Mass. 515, that the court said the pardon had been granted by the executive “for the sole purpose of rendering him a competent witness.” In Bennett v. State, 1887, 24 Tex.App. 73, 5 S.W. 527, the cases of Curtis v. Cochran and Baum v. Clause, both supra, and the authorities arrayed in those cases, are relied upon.5 In the Bennett case appears again the distinction which I think should not be drawn. While credibility is for the jury the use of the pardoned crime on that question should be barred, as it is on the kindred question of competency to testify. The Texas court acknowledges that the general effect is “that a full pardon absolves the party from all legal consequences of his crime. It makes the offender a new man. It blots out his offense, and gives him a new credit and capacity; and even so far extinguishes his guilt as that, in the eye of the law, the offender is as innocent as if he had never committed the offense.” (5 S.W. at page 529.) The actual holding in Territory v. Chavez, 1896, 8 N.M. 528, 45 P. 1107, is only that a pardon restores a witness’ competency, although Curtis v. Cochran, supra, is quoted on the question of credibility as well. Martin v. Commonwealth, 1904, 78 S.W. 1104, 25 Ky.Law.Rep.1928, is quite ambiguous on the present question. The nature of the pardon is not shown. A former conviction of grand larceny had been introduced by the defendant to impeach the credibility of a dying declaration, not the testimony of the accused. The report of the case states merely: “The commonwealth then introduced and had read a pardon to the deceased for this crime. The court should not have permitted this pardon to have been introduced as evidence.” (78 S.W. at page 1105, 25 Ky.Law Rep. at page 1930.) In Bryant v. United States, 5 Cir., 1919, 257 F. 378, 383, the only question decided was that a pardon is admissible “in rebuttal of the evidence” of a conviction which had been used to impeach a witness. In People v. Hardwick, 1928, 204 Cal. 582, 269 P. 427, 59 A.L.R. 1480, the court follows the rule in the states, as set forth by the majority herein, but expressed grave doubt as to its soundness, in permitting one who had been convicted to be confronted with the record of his conviction, although pardoned. (269 P. at page 432.) Wallamet R. T. Co. v. Oregon S. N. Co., D. C.Or., 1876, 29 Fed.Cas. pages 88, 90, No. 17,106, was a civil suit between private concerns. It holds that a pardon in general does not restore credit: “A pardon does not profess to be a reversal of the judgment of conviction, but only a relief from the punishment imposed by it,” a view quite inconsistent with Ex parte Garland, where the punishment, or disqualification sought to be erected, was not that imposed by the judgment of conviction. Vedin v. McConnell, 9 Cir., 1927, 22 F.2d 753, was an action in ejectment between private parties. Evidence of plaintiff’s conviction for perjury was offered. It should be noted that a former conviction for perjury might place the matter upon a different footing. Williston, supra, p. 653.
In Carlesi v. People of State of New York, 1914, 233 U.S. 51, 34 S.Ct. 576, 58 L. Ed. 843, quoted in the majority opinion, the Supreme Court carefully avoided impinging upon its earlier decisions to which I have referred, saying,
“ * * * The issue is a narrow one and involves not the determination of the operation and effect of a pardon within the jurisdiction of the sovereignty granting it, but simply requires it to be decided how far a pardon granted as to an offense committed against the United States operates so to speak extra-territorially as a limitation upon the States ex-*613eluding them from considering the conviction of a prior and pardoned offense against the United States in a prosecution for a subsequent state offense. * * * ” (233 U.S. at page 57, 34 S.Ct. at page 577.)
In holding that the state of New York acted validly within its sovereignty, the Court said that it was “Determining * * * only the case before us.”
The weight which flows from the authorities relied upon by the majority I think is counterbalanced by the very nature of a full, unconditional and unlimited pardon. The fact that a conviction can be said to be material on the question of credibility, notv withstanding a pardon, is not decisive. Evidence is not necessarily admissible because material. A communication of client to counsel might he very material and relevant. But the policy of the law forbids its use. Numerous other illustrations might be given. So the policy of the law should bar the use for impeachment purposes of a fully pardoned Federal offense in a subsequent trial by the United States for a different offense. To permit the hand which has bestowed the forgiveness, Ex parte Wells, supra, to bring forth the offense forgiven as a reproach to the one forgiven, in the administration of the criminal laws, is inconsistent with the act of forgiveness and unnecessarily detracts from the benign and merciful nature of a full Presidential pardon. What third party, Ex parte Garland, supra, 4 Wall, at page 381, 18 L.Ed. 366, or other uses of the former conviction might be made we need not now decide.
The views herein set forth are not met by the admission in evidence of the pardon after evidence of the conviction has been admitted. If the pardon is admissible it is because it takes from the Government the right it otherwise would have to use the conviction to impeach credibility. Once the conviction, however, has been admitted, as in the case at bar, notwithstanding the pardon, the efficacy of the latter with respect to the question of credibility would seem to have been adversely decided so as to render the pardon immaterial on that question.
I would reverse and remand.
. Elaborate historical and analytical arguments appear in the Report, including those of Mr. Reverdy Johnson for the petitioner and of Mr. Stanbery, special counsel of the United States. See, particularly, 4 Wall. 342, 349-350, 71 U.S. 342, 349-350, 18 L.Ed. 306.
. This is ample to dispose of any contention based upon § 14-305, D.C.Code (1940). That provision should not in any event be construed as intended to limit the effect of a Presidential pardon. Rather, it deals with the general evidentiary rule alone. See, also, United States v. Klein, infra, 13 Wall, at pages 147-148, 21 L.Ed. 426.
. Ex parte Wells, supra, it will be noted, was decided prior to the War.
. Professor Weihofen (The Effect of A Pardon, 88 U. of Pa.L.Rev. 177 (1939) ) is quoted in the majority opinion in part as follows: “The damage to his credibility * * * is not a legal consequence of the conviction; the conviction is merely evidence that he is untrustworthy, a fact not wiped out by the pardon.” One wonders, then, why the pardon restores competence as a witness (in those jurisdictions where a conviction constitutes a barrier to such competence). The basis for disqualification as a witness, of which a conviction is said to he only evidence, remains, according to this reasoning, nob-withstanding, the pardon.
. «* * * An(j although a pardon cannot convert a wicked man into an honest one, and confer credibility upon one who through the infamy of his conduct is not credible, yet such a pardon must be presumed to have been conferred after inquiry, upon good and sufficient ground, on an object worthy of the indulgence, and therefore worthy of being heard; hut the degree of credit is still to be left to the jury.” (5 S.W. at page 529.)