« ПредыдущаяПродолжить »
tice; if final judgment is rendered, leaving the taxation a mere ministerial act to be done by the clerk; 1 they are recov, erable after pardon. The same rule applies also to the penalty. While a private corporation would doubtless be deemed a private person, within this rule; yet a county iş held, in Illinois, not to be such, but is liable to have penalties, vested in it, divested by the executive pardon. And the su, preme court of the United States has decided, that the authority given to the secretary of the treasury by the act of March 3, 1797, c. 361, to remit forfeitures under the revenue laws, may be exercised at any time before payment of the money to the collector.
$ 709. The doctrine of the last section, concerning when the right vests, refers to cases in which the prosecution or suit for the penalty is in the name of the government. But to bar a penal action in the name of the private person to whom the penalty is in part or in full to come, so as to defeat his claim to whatever he is himself to have, the pardon must transpire before suit commenced; for the commencement of it vests the right. If the proceeding is in the name of the
? Duncan v. Commonwealth, 4 S. & R. 449; Ex parte McDonald, 2 Whart. 440. The case of Playford v. Commonwealth, 4 Barr, 144, seems to lay down the doctrine, that, when a pardon comes between the verdict and the sentence, the costs may still be enforced. But the case plainly is misunderstood by the reporter. The judges decided whatever they did decide in it, on the strength of Duncan v. Commonwealth, supra, which expressly holds the contrary; namely, that costs do not follow under such circumstances.
· Frazier v. Commonwealth, 12 B. Monr. 369; Rowe v. The State, 2 Bay, 565; The State v. Williams, 1 Nott & McCord, 26; Rucker v. Bosworth, 7 J. J. Marshall, 645 ; Stoop v. Commonwealth, 3 Barr, 126. See Rankin v. Beaird, Breese, 123.
Holliday v. People, 5 Gilman, 214. But see Stoop v. Commonwealth, 3 Barr, 126. And see The State v. Simpson, 1 Bailey, 378.
* United States v. Morris, 10 Wheat. 246. See The Hollen, 1 Mason, 431, 434, 435.
5 2 Hawk. P. C. Curw. Ed. p. 543, $ 33, 34; Grosset v. Ogilvie, 5 Bro. P. C. 527.
king or State, by indictment or criminal information, the rule, we saw in the last section, is different; and the private inter: est does not vest, even on the verdictiof the jury, but only on the final judgment of the court.? Where a forfeiture is to be enforced by a seizurel and condemnation in rem, the private interest vests, certainly on the condemnation, probably on the seizure. Though the pardon cannot take away the individual claim, it can that of the State ; & even, it appears, to requiring the remission of money which has already passed out of the hands of the convict.4 Y
1:14. 1;) ;; ' '; } $710. The constitution of the United States expressly excepts out of the pardoning power cases of impeachment, and the same exception exists in most of the State constitutions. As to legislative contempts, Mr. Justice Story observes : “ The constitution [of the United States] is silent in respect to the right of granting pardons in such cases, as it is in respect to the jurisdiction to punish for contempts.
The latter arises by implication; and, to make it effectual, the former is excluded by implication:"96) · But the Mississippi tribunal has held, that a contempt of court can be pardoned by the governor, under the State constitution; which gives him “power to grant reprieves and pardons, and to remit fines, in all criminal and penal cases, except in those of treason and impeachment."?
1 Duncan v. Commonwealth, 4 S. & R. 449; The State v. Youmans, 5 Ind. 280. And see Groenvelt's case, 1 Ld. Raym. 213, 214.
2 United States v. Lancaster, 4 Wash. C. C. 64; McLane v. United States, 6 Pet. 404. See The Hollení 1 Mason, 431,434, 435. 5.Rowe v. The State, 2 Bay, 565; The State v. Williams, 1 Nott & McCord, 26. * Matter of Flournoy, 1 Kelly, 606. See post, $ 713.
) E. 5 Ante, $ 704.
• Story Const. $ 1503. It is the same in England by Stats 12 & 13 Will. 1-3, c. 2, 4, Bl. Com. 261. -« Bút after the impeachment is solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged.”--2 Hawk. P. Ç. Curw, Ed. p. 547,9 44. * Ex parte Hickey, 4 Sm. & M. 751.
[BOOK VI. 9 $ 711. A pardon may be full or partial, absolute or condi? tional. In some of the States, this is so by the express words of the constitution;' and, where the words are not express, the same result flows from the doctrine, that, with us, a power general in terms takes the construction given it in the English common law, whence ours is derived. It flows also from the truth, that the greater necessarily includes the less. When the pardon is a full one, its collateral and consequential legal effects cannot be abridged by any language em ployed in it; for they must be determined by the law of the land. If it is a conditional pardon, the condition may be either precedent or subsequent; if precedent, - that is, if, by its terms, some event is to transpire before it takes effect, its operation is deferred until the event occurs. If the condition is subsequent, the pardon goes into operation immediately, yet becomes void whenever the condition is broken.
::$ 712. The conditions, in conditional pardons, are practically various. The law seems not to have limited them to any set forms or specific things. Undoubtedly, however, a condition might be imagined of such a nature, that the law would refuse to recognize it. One condition found sometimes in pardons is, that the prisoner shall leave, permanently or for a time, the State or country, Another condition is, that he shall submit to a punishment mentioned, not originally pronounced. If the condition is violated, -as if, it being that the party shall leave the country and not return, yet either he
* Flavell's case, 8 Watts & S. 197; The State v. Addington, 2 Bailey, 516; The State v. Twitty, 4 Hawks, 193 ; Perkins v. Stevens, 24 Pick. 277.jg People v. Potter, 1 Parker, 47; Ex parte Wells, 18 How. U. S. 307, Çontra, as to conditional pardons, Commonwealth v. Fowler, 4 Call, 35,
I • Ex parte Hunt, 5 Eng. 284.,
People v. Pease, 3 Johns. Cas. 333. • Flavell’s case, 8 Watts & S. 197; Reg. v. Foxworthy, Holt, 521. * The State v. Smith, 1 Bailey, 283 ; People v. Potter, 1 Parker, 47; Reg. v. Foxworthy, 7 Mod. 153.
• The State v. Addington, 2 Bailey, 516; The State v. Smith, 1 Bailey, 283. But see The State v. Twitty, 4 Hawks, 193.
goes not, or goes and comes back, the original senteịce may be enforced.?, But these conditions, like conditions in other grants, are strictly construed; therefore if the words of a condition are, “ depart without delay.”, from the State, it is not broken, says the Arkansas court, by the prisoner's coming back to the State, after having left it. And, when one was
* pardoned on condition of his leaving the country within a specified time, the court deducted time during which he was sick and deranged.
§ 713, The effect of a full pardon is to absolve the partyi from all the legal consequences of his crime, and of his con. viction, direct and collateral ; ! including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided. Yet, as we have already -seen, it cannot divest rights vested in individuals; and, if a fine coming to the government has been already paid over, or if property has yested on an attainder, it will not be restored without express words in the instrument of pardon. Neither
The State v. Fuller, 1 McCord, 178; The State v. Addington, 2 Bailey, 516; The State' v. Smith, 1 Bailey, 283; Rex v. Madan, 1 Leach, 4th ed. 223 ; Roberts v. The State, 14 Misso. 138.
..?- The State v. Smith, i Bailey, 283; The State v. Chancellor, 1 Strob. 347; People v. Potter, 1 Parker, 47. : And see Rex u, Aickles, 1 Leach, 4thi ed. 390; Rex v. Thorpe, 1 Leach, 4th ed. 396, note.
!! 9' Flavell's case, 8 Watts & S. 197.
4 Ex parte Hunt, 5 Eng. 284. - Yet-see, on this general question, Rex v. Miller, 1 Leach, 4th ed. 74, 2 W. Bl. 797; Reg. v. Foxworthy, 7 Mod. 153.
People v. James, 2 Caines, 57. And see Rex y. Madan, 1 Leach, 4th, ed: 223; Rex v. Badcock, Russ. & Ry. 248.
* Rex v. Greenvelt, 12 Mod. 119; Strickland, v. Thorpe, Yelv, 126 ; Petre v. Cambridge, 3 Lev. 332; Matter of Deming, 10 Johns. 232, 483.
* Thomas v. Sorrell, Vaugh. 330, 333 ; Hall y. Vaughan, 5 Co. 49 a; Toombes v. Etherington, 1 Ley. 120; Foxley's case, 5 Co. 109 a. • Ante, $ 708, 709. • Toombes v. Etherington, 1 Lev. 120; In re Church's Will, 11 Eng. L. & Eq. 240. , And see ante, § 709, 1,
[731 ) 1
will the pardon of one offence operate as a discharge from
$714. Among the collateral consequences of the attainder, or final sentence against the prisoner, removed by the pardon, is the incapacity to be a witness.? Yet only a full pardon has this effect. And, when the pardon is full, the conviction may still be shown as impairing the credit of the witness. So there is authority for the proposition, that the defendant, in a civil suit for the slander of calling the plaintiff a thief, or the like, cannot justify by setting up the truth of his charge, when the criminal offence of employing the words has been pardoned, - a proposition supposed to be limited in a manner to take away its practical operation for this country; namely, limited to cases wherein the pardon precedes the conviction.”
§ 715. Under the English common law, corruption of blood is not restored by pardon ; 6 and there seems to be a doctrine, not well defined, and especially not satisfactory in itself, namely, that a disability imposed expressly by statute as
* Hawkins v. The State, 1 Port. 475; Commonwealth v. Roby, 12 Pick. 496, 508; Anonymous, Sir F. Moore, 756, pl. 1044; The State v. McCarty, 1 Bay, 334 ; Reg. v. Harrod, 2 Car. & K. 294.
· Hoffman v. Coster, 2 Whart. 453 ; Jones v. Harris, 1 Strob. 160; Rex v. Reilly, 1 Leach, 4th ed. 454; Rex v. Crosby, 1 Ld. Raym. 39, 5 Mod. 15; Rex v. Celier, T. Raym. 369; Rex v. Castlemain, T. Raym. 379 ; People v. Pease, 3 Johns. Cas. 333. In New York a statute provides, that a person convicted of perjury “shall not thereafter be received as a witness to be sworn in any matter or cause whatsoever, until the judgment against him be reversed ;” the effect of which statute is to prevent the pardon from restoring the competency of the witness. Houghtaling v. Kelderhouse, 1 Parker, 241.
3 Perkins v. Stevens, 24 Pick. 277.
Cuddington v. Wilkins, Hob. 81; 2 Hawk. P. C. Curw. Ed. p. 547, § 48; 1 Stark. Slander, 237, 238. • Co. Lit. 391 b; Walsingham's case, Plow. 547, 558.