
    BROCKETT’S CASE. Robert Brockett v. The United States.
    
      Motion to dismiss.
    
    
      A claim for rent of premises in Alexandria, Virginia, taken possession of by officers of the United States army, for the use of the government, in 1864 and 1865.
    The averment of loyalty in a petition is essential, as the Solicitor has a right to traverse it, and he cannot traverse what is not averred. The omission of such averment is fatal.
    The ASSISTANT Solicitor for defendants :
    The motion in this ease is based upon the want of sufficient aver-ments in the petition. The objection to it is founded on the requirements of the twelfth section of the act of Congress approved March 3, 1863, which provides, That in order to authorize the said court to render a judgment in favor of any claimant, if a citizen of the United States, it shall he set forth in the petition that the claimant, and the original and every prior otvner thereof where the claim has been assigned, has at all times borne true allegiance to the government of the United States, and whether a citizen or not, that he has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said government, which allegations may be traversed by the government; and f on the trial such issue shall be decided against the claimant, his petition shall be dismissed.
    
    In this case the petition contains the following averment:
    “ Tour petitioner is a citizen of the United States and of the State of Virginia, and has taken the oath of amnesty prescribed by the President’s proclamation, one copy of which is on file in the Department of State, and the other in the office of the Solicitor of the Treasury.”
    It is a familiar and well settled principle of law, that where the jurisdiction and powers of a tribunal are special, limited, and statutory, all the antecedent conditions necessary to invest such a tribunal with jurisdiction of a cause must be shown to have been performed. The court or the tribunal will not presume their performance. Jurisdictional facts must be shown affirmatively. Heirs of Langworthy v. Baher, 23 Ills., 484, 489. For.d v. 'Walworth, 15 Wendell, 450. Cotes et al. v. Haskins, 9 Mass., 542.
    The proviso contained in the twelfth section of the act of March 3, ] 863, is not ex post facto in its character.
    
      It has been repeatedly declared by the Supreme Court that this term is to be applied to criminal cases alone, and not to civil proceedings. In Fletcher v. Fech, 6 Cranch, 87. Wilson v. Mercer, 8 Peters, 86. Ogden v. Saunders, 12 Wheaton, 266. GaJder v. Bull, 3 Dallas K.., 386.
    The taking of the oath of amnesty by the claimant did not relieve him of the statutory requirements in regard to his petition in the Court of Claims.
    The constitutional power of the President to grant pardons is not denied. It is admitted also that the pardon relieves the party of all the penalties, or, in other words, from all the punishment which the law inflicted for his offence.
    It relieves him from nothing more than this. If the averment required of him by the twelfth section of the act of March 3, 1863, (in order to give the Court of Claims jurisdiction of his case,) was not an added penalty for participating in rebellion against the government, as it clearly was not, then the pardon of the President has no effect in releasing him of his obligation to take it. If it is, as we have shown, a condition precedent to the right of the claimant to receive money from the treasury of the nation, then the President cannot by pardon or otherwise dispense with the law.
    Mr. R. T. Morsell for claimant:
   Per Curiam :

There is no averment of loyalty in this petition, as the statute requires. It is essential there should be, as the Solicitor has the right to traverse it, and he cannot traverse what is not averred. The petition is therefore dismissed.  