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approximation to some particular thing mentioned, the question would have been a very different one. And perhaps the distinction thus indicated may show us, when a forfeiture ordained in a statute is of the one kind, and when of the other kind. At the same time, if the intent of the person possessing the thing to which the forfeiture relates, is a seco ondary matter, the fact of its being introduced into the consideration of the case will not alone make the forfeiture a

. , penalty for crime. , Indeed the entire question is a nice one, on principle, and little illumined by authority. The Massaehusetts court did not discuss it in the case now spoken of; still the omission prevents not the case from shedding light over the question in this aspect.

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§703 a. THE subject of pardon presents itself in many complications in England, but in this country it is comparatively simple. Let us look at its leading doctrines.

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§ 704. A pardon, in the legal sense, is a remission of guilt. The power of pardon, in England, is in the crown.1 It has been there considerably regulated by statutes, enacted from time to time, beginning at very early periods; and sometimes pardons, general and special, have been granted by particular acts of parliament. In this country no adjudications have determined, whether the power is inherent in any department of our national and State governments; but provision has been made for it in the constitutions of the United States, and of the several States. Perhaps an exact examination would show a State or two in which the constitution is silent; but, if so, the defect will be found supplied by legislation. By the constitution of the United States, the president is vested with the "power to grant reprieves and pardons for offences against the United States, except in cases

1 Rex v. Parsons, 1 Show. 283; Rex v. Greenvelt, 12 Mod. 119, ↑ Ld. Raym. 213, 214; Shugborough v. Biggins, 5 Co. 50 a, Cro. Eliz. 632, 682;

Searle v. Williams, Hob. 288, 293;

Smith v. Bowen, 11 Mod. 254.

23 Inst. 233 et seq.



And see Story Const. § 1496.

When the constitution of a State vests in the governor the power of pardon, he may exercise it, though no legislation exists on the subject. Baldwin v. Scoggin, 15 Ark. 427. In Alabama, the legislature cannot pardon, the power being exclusively in the governor. Haley v. Clark, 26 Ala. 439.

of impeachment.”In most of the States, the power is reposed in the governor, who is to exercise it with the advice of his counsel, or other officers designated for the purpose, or alone, as the provision may be. There are sometimes special powers of remitting fines and forfeitures conferred on the courts, 3


$ 705. There can be no pardon of an offence until committed; for earlier immunity granted would be a license, pro

; curable only from the legislature. But when the guilt is incurred, it can be remitted either before judicial proceedings are undertaken, or during their pendency, or after their termination, or after the punishment has been partly or fully endured. This is the general doctrine; but the constitutions of most of our States forbid the pardoning power to act before conviction. We have already seen, that a defendant is convicted when the verdict of guilty is returned by the jury, though sentence is not pronounced; and accordingly, in Massachusetts, where this constitutional restraint prevails, the court in one case postponed the sentence after the verdict of guilty had been brought in, expressly to permit the defend

! 1 U. S. Const. art. 2, § 2, cl. 1.

* See the constitutions and statutes of the several States ; also, CommonWealth v. Caton, 4 Call, 5; Ex parte Birch, 3 Gilman, 134, 145; The State v. Fuller, 1 McCord, 178; The State v. Fleming, 7 Humph. 152; Ex parte Hunt, 5 Eng. 284; The State v. Twitty, 4 Hawks, 193; Ex parte Hickey, 4 Sm. & M. 751; Stoop v. Commonwealth, 3 Barr, 126; The State v. Simpson, 1 Bailey, 378; The State v. Brewer, 7 Blackf. 45; Charleston v. Cor

' leis, 2 Bailey, 186.

* Strafford v. Jackson, 14 N. H. 16. .,;& Thomas v. Sorrell, Vaugh. 330, 333; Case of Pardons, 12 Co. 29; Rex 10. Wilcox, 2 Salk. 458; Rex v. Williams, Comb. 18; Shipley v. Craister, 2

Vent. 131 ; 2 Hawk. P. C. Curw. Ed. p. 540, § 28. And see Ib. and 8 29, for some possible exceptions in England; but they can probably have no application in this country.

• Rex v. Reilly, 1 Leach, 4th ed. 454; Rex v. Crosby, 1 Ld. Raym. 39; Anonymous, 1 Vent. 349; Rex v. Castlemain, T. Raym. 379.

* Ex parto Birch, 3 Gilman, 134, 145. ? Ante, $ 223.

ant to apply for a pardon; which, being obtained, was pleaded in bar of the sentence.1

: $ 706. A pardon procured by fraud practised on the pardoning power is void. The English books carry this doctrine só far as to imply a fraud whenever the king has not been truly and fully apprised of the nature of the case, and the state of the proceedings. Gabbett has observed : “ It may be laid down as a general rule, that any suppression of truth or suggestion of falsehood, in a charter of pardon, will vitiate itz and, upon this principle, if it state the party to be attainted when in fact no 'attainder had ever taken place, it will be altogether invalid.” 3 So likewise it is void, if the party is attainted, and it does not mention the attainder; because the presumption from the omission is, that the king was not truly informed;4 while, on the other hand, if the charter of pardon, drawn in general terms, contains an exception of any particular class of felony, the exception applies equally whether there has been an attainder of it or not.

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$ 707. Questions sometimes arise as to the construction of the written instrument of pardon. Yet little need be said on this subject, except that, on the one hand, it is to be deemed a grant, and so in a matter of doubt is to be taken most strongly against the grantor; 6 while, on the other hand, it is not to be carried by implication beyond its fair import.7 Still this instrument, like any other, may have an operation

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? Commonwealth v. Mash, 7 Met. 472. 8. P., The State v. Fuller, 1 McCord, 178; Duncan v. Commonwealth, 4 S. & R. 449.

2 Gab. Crim. Law, 585; 2 Hawk. P. C. Curw. Ed. p. 533, $ 8,9. See also the State v. McIntire, 1 Jones, N. C. 1.

2 Gab. Crim. Law, 586; 3 Inst. 238.

2 Hawk. P. C. Curw. Ed. p. 584 ; Rex v. Maddocks, 1 Sid. 430 ; Anonymous, J. Kel. 28.

2 Hawk. P. C. Curw. Ed. p. 535, $ 13. • Wyrral's case, 5 Co. 49 b; Ex parte Hunt, 5 Eng. 284.

2 Hawk. P. C. Curw. Ed. p. 535, 539, 540, $ 12, 24, 25. See Rawleigh's case, 2 Roll. 50.


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in law beyond its words; and therefore a writing, by the president under the seal of the United States, directing the immediate discharge of a person sentenced to the penitentiary for robbing the mail, was held to be a pardon. But a mere promise of pardon is not a pardon, though it may properly lead the court to continue the case until the thing promised can be obtained.2

$ 708. The power of pardon extends, in the English law, not only to indictable offences, but to offences pursuable in the ecclesiastical courts, and to penal actions;4 with this limitation, that, when a right to the penalty or costs has become vested in a private person, it cannot thus be taken away. The constitutions of some of our States expressly extend the pardoning power to the remission of fines and forfeitures, while those of other States, and that of the United States, do not; but pretty clearly the whole is included, the same as in England, under the general power. Its limit is here, as in England, that it cannot divest private vested rights. Therefore if costs are coming to a prosecutor, or an attorney, and are already taxed ;7 or probably, in our prac

" Jones v. Harris, 1 Strob. 160.

* Rex v. Garside, 4 Nev. & M. 33, 2 A. & E. 266. And see further as to the interpretation of pardons, Rex v. Johnson, 3 Mod. 241; Philips's case, 1 Sid. 170; Oswald v. Everard, 1 Ld. Raym. 637; Pool v. Trumbal, 3 Mod. 56; Wyrral's case, 5 Co. 49 b; Phitton's case, 6 Co. 79 b; Littleton v. Dudley, 5 Co. 47 a; Franklin's case, 5 Co. 466.

* Cooke v. Hall, 5 Co. 51 a; Cuddington v. Wilkins, Hob. 81.

* 3 Inst. 238; 2 Hawk. P. C. Curw. Ed. p. 543, § 33. See Bentley v. Ely, 2 Stra. 912.

* Thomas v. Sorrell, Vaugh. 330, 333; Cooke v. Hall, 5 Co. 51 a; Pool v. Trumbal, 3 Mod. 56; Howel v. James, 2 Stra. 1272; 2 Hawk. P. C. Curw. Ed. p. 543, § 34; Matter of Deming, 10 Johns. 232, 483.

Story Const. § 1504.

Cooke v. Hall, 5 Co. 51 a; 2 Hawk. P. C. Curw. Ed. p. 546; Anglea v. Commonwealth, 10 Grat. 696. See also Lyon v. Morris, 15 Ga. 480; Routt v. Feemster, 7 J. J. Marshall, 181; Edwards v. The State, 7 Eng. 122.


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