Arthur v. Craig

Bothrock, Ch. J.

1. pamjon: muy bé°nal gi.mted. I. The first question presented is : has the Governor of this State power to grant a conditional pardon? The Constitution, §16, art. 4, provides: “The Governor shall have power to grant reprieves, commutations, and pardons, after conviction, for ap o:gerLSes exoept treason and cases of impeachment, subject to such regulations as may be provided bylaw.” The only restrictions upon the pardoning power imposed by law relate to pardons for murder in the first degree. Code, § 4712. As to all other crimes the power to pardon is given by the Constitution, unrestricted by any statute.

In vol. 4, p. 401, of Blackstone’s Commentaries, it is said: “A pardon may also be conditional; that is, the king may extend his mercy upon what terms he pleases, and may annex to his bounty a condition, either subsequent or precedent, on the performance whereof the validity of the pardon will depend; and this is by the common law.” This rule has been followed by adjudications in England, and has been so generally adopted by the courts of this country,- under constitutions providing an unrestricted pardoning power, that the law must now be regarded as settled that the executive, may annex to a pardon any condition, precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed. People v. Potter, 1 Parker, 47; 1 Bishop Crim. Law, §§ 711, 712; United States v. Wilson, 7 Peters, 150 ; Ex-parte William Wells, 18 Howard, 307 ; Flairlis’ Case, 8 Watts & Sargent, 197; State v. Smith, 1 Bailey (S. C.), 203.

II. The remaining question in the case is as to the effect to be given to a conditional pardon.

2. _ 2. —--- : rev In State v. Smith, supra, it is said: “A pardon ex vi termini presupposes a wrong done, or an offense committed, and forgiveness of the offender by the party injured ; and as the act of pardoning must necessarily be voluntary, the injured party must have the power of prescribing the atonement to be made; and it necessarily follows that the offender has the right to accept or not to accept *268 the terms proposed. He may prefer to make the reparation demanded by the law for the wrong done or offense committed, or the atonement substituted, at his election. ” The petitioner in this case was serving a sentence imposed by the law for a crime committed. He had no legal right to demand a release from imprisonment. The pardon offered to him was an act of grace or favor upon the part of the State by its executive. He was free to accept the pardon with its conditions, or to reject it, and serve out his sentence. He chose the former, accepted the pardon, and stipulated that for a violation of the conditions the instrument might be summarily revoked by the Governor, and he should be remanded to the penitentiary for the remainder of the term of his sentence.

The conditions imposed are not illegal, immoral, or impossible to be performed, and to enforce them deprives the petitioner of no legal right. It may further, with propriety, be said that if the Governor issued his warrant for the arrest and imprisonment of the petitioner upon an insufficient showing that he had violated the conditions of the pardon, and he should be required to serve out the remainder of his term, he will only perform that which the law, by his sentence, solemnly adjudged to be just.

The court below overruled the demurrer upon the ground that the Governor could not, without notice to the petitioner, and without a hearing, determine the conditions broken, and on his warrant imprison in the penitentiary, and that he could not exercise the judicial functions necessary to determine the question, because the Constitution gives these powers to the courts alone.

Certain adjudicated cases are relied upon as holding that a violation of a conditional pardon “should be judicially determined and the execution of the sentence enforced by the court pronouncing it, or some other court of competent jurisdiction.” People v. Potter, 1 Parker Crim. R., 47; 9 Ind., 20 ; Commonwealth v. Fouler, 4 Call (Va.), 35 .

*269 Without entering into a discussion of the questions which are determined in these cases, it is sufficient to say that the instrument in the case at bar is unlike any to which our attention has been called. It expressly provides that the Governor may by b-is warrant revoke it upon such showing of a violation of the conditions as he may deem sufficient.

Upon its revocation the legal status of the petitioner ■ must be regarded the same as it was before the pardon was’granted. It must, be remembered that the pardon was an act of grace. The petitioner had no right to demand it. It was founded on no right which he could, enforce in any court. What he accepted was in the nature of a favor or gift. It was not such a contract as entitled him to Have a judicial determination of forfeiture, in the face of his stipulation that the Governor might revoke it upon such showing as might be satisfactory to him.

We think the demurrer should have been sustained, and the petitioner should have been remanded to the penitentiary.

Reversed.