(dissenting). I agree that the order must be reversed, but I go further than the majority and believe that the relators should be *166unconditionally ‘ discharged. My reáson is that I think the President’s order of June 19, 1923, must be considered as a conditional pardon, which, while outstanding, prevents the aliens’ deportation under the second proviso of section 19 of'the Act of 1917. It is quite true that the order uses the word “commute” and that we must take this as deliberate. But the word “commute” is not conclusive, Lee, Sergeant, v. Murphy, 22 Grat. (Va.) 789, 12 Am. Rep. 563, and if we treat the order as a commutation it is not valid throughout. I think we should not so read it if we can help; ut res magis valeat. Its invalidity as a commutation arises because the President even under his power to commute may not change the lawful sentence of a court except by reducing it. None of these relators was sentenced to serve a term which was not continuous, and no one could impose a different sentence upon him. To let him out and put him back after an interval was to divide 'his sentence piecemeal which made it quite another punishment. Nor is this in the least a formal difference. To be released, to re-establish one’s life in the world, and then to be retrapped, is a vastly different matter from enduring at a stretch the pains of full execution. While I know of no case on the point, it seems hardly necessary to labor the reasoning upon so plain a matter.
On the other hand, it is abundantly settled in the books that a pardon may be conditional, and that the condition may be subsequent. Ex parte Wells, 18 How. 307, 15 L. Ed. 421; Lee, Sergeant, v. Murphy, supra; Arthur v. Craig, 48 Iowa, 264, 30 Am. Rep. 395; Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047; Crooks v. Sanders, 123 S. C. 28, 115 S. E. 760, 28 A. L. R. 940; Alvarez v. State, 50 Fla. 24, 39 So. 481, 7 Ann. Cas. 88, 111 Am. St. Rep. 102; Ex parte Rice, 72 Tex. Cr. R. 587, 162 S. W. 891. Bishop recognizes the same law (1 Bish. New Cr. Law [9th Ed.] 658). The apparent antinomy arises because a pardon, like a, deed, must be accepted to be valid at all, U. S. v. Wilson, 7 Pet. 150, 8 L. Ed. 640; Burdick v. U. S., 236 U. S. 79, 35 S. Ct. 267, 59 L. Ed. 476, though acceptance will be presumed if the convict do not reject it. But his consent is necessary, for he may prefer to suffer execution than to perform the condition. In the ease at bar, these relators, presumably confident of their ability to satisfy the President in their deportment, were willing to run the risk of rearrest and of serving out what remained of their sentences. That willingness, and that only, makes possible the validity of the whole order of June 19, 1923.
So we are faced with the alternative of treating the order as in part void, or as a conditional pardon. We have no right, I submit, merely from the use of the word “commute,” to say that the President would have released the relators at all,-if he had supposed that the condition was invalid. We should look to the substance rather than the form; to what he meant to do, than to the language he chose. It is argued that their release was intended only for the purpose of deportation, but such a conclusion is palpably erroneous. The deportation order had actually passed before the release was given. I own I find it hard to see on what theory it can be supposed that in such a posture we' are free to treat the condition as idle surplusage. All the President need do was to commute the sentences absolutely and the deportation warrants waited at the prison door. To override so clearly expressed a purpose on the strength of an inapposite word, or because we assume that the President must have regarded the crimes as too heinous to be paltered with, appears to me unjustified. Finally, we should, I think, remember that we are dealing in any view with an act'of grace on which we are admonished to look with an auspicious eye and whose conditions we should not narrowly construe. Osborn v. U. S., 91 U. S. 474, 478, 23 L. Ed. 388.
These men may yet be subject to deportation, if, the condition falling in, they serve their sentence and are then released. For the condition would in that ease have invalidated the pardon ab initio and they would be in the same case as though it had never been granted. But while it is outstanding they ..seem to me to have the status of pardoned convicts, and as such the second proviso of section 19 protects them.