Dominick v. Bowdoin , 44 Ga. 357 ( 1871 )

Lochrane, Chief Justice.

At the April Term, 1869, of the Superior Court of the county of Pike, John A. Dominick, the plaintiff in error, was indicted for murder. In October, 1870, the Governor of this State granted and caused to be delivered to him an unconditional pardon. Subsequently to this pardon he was arrested by the sheriff upon a bench-warrant issued from Pike Superior Court, upon the indictment for murder, and taken before some judicial officers in Pike county, who ordered him to be lodged in the common jail of the county of Spalding for safe keeping.

During his confinement in jail he applied for the State’s writ of habeas corpus, which was granted, and, upon the hearing, the jailer assigned for cause of his detention and imprisonment the proceedings stated, and that he presented the pardon of the Governor after he was in jail, etc.

The Judge, sitting as a Court of habeas corpus, refused to receive the evidence of the pardon, and remitted the prisoner to jail, and this judgment of the Court below is the error assigned.

1. The important question to be decided in this case is the power of the Governor, under the Constitution of 1868, to grant pardons before conviction. The language of the Constitution of 1868 is in these words: “He shall have power to grant reprieves and pardons, to commute penalties, and to remit any part of a sentence for offenses against the State except in cases of impeachment.”

The power conferred under this Constitution differs from that conferred by our previous Constitutions. In the Constitution of 1798, the language was : “ He shall have power to grant reprieves for offenses against the State, except in cases of impeachment, and to grant pardons, or to remit any part of a sentence in all cases, after conviction, except for treason or murder, in which cases he may respite the execution, and make report thereof to the next General Assembly, by whom a pardon may be granted.”

From the 23d May, 1798, down to the Constitution of 1868, the power of the Governor was limited by the Constitution as to the nature of the offenses to be pardoned, and also to the time, or “ after. conviction.” By reference to our present Constitution, it will be seen these checks and limitations have been removed. His power to pardon is limited only in cases of impeachment, and the Constitution is silent as to the time when the power may be exercised.

The language of our present Constitution is similar to that used in the Constituiion of the United States. Enumerating the president’s powers, it says: “He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It will be seen that the Constitution of the United States is also silent as to the time when the power may be exercised by the president. The power of pardoning may be traced among the earliest writers, as the prerogative of the sovereign authority, and no matter what reasons it may be founded upon, its existence has been recognized. The limitations in cases of impeachment, found in the United States Constitution, and the Constitution of 1868, may be found in Stat. 12 and 13, W. III., C., 2, which contains these words: “That no pardon under the great seal should be pleaded in bar to an impeachment by the House of Commons.” And this Act was, itself, founded upon the altercations which finally terminated in the dissolution of Parliament, arising out of the impeachment of the Earl of Danby, in 1678, before the Commons, and who presented as his plea in bar of such impeachment, the pardon of the King. The prerogatives of the Crown, and the legislative privileges of the Parliament of Great Britain, were practically settled by the revolution of 1688, but the subject lias again and again been subjected to grave and learned discussions, and the rights and privileges of Parliament may be, perhaps, now conceded to be beyond the control of judicial tribunals. And the last speech of the celebrated Sir William Wyndham, was delivered in the House of Commons upon this very subject. But whatever claims of limitation against the power of pardon, in cases of impeachment, may have existed, the right as to offenses against the Grown, was yielded, as the unquestioned prerogative of the sovereign. And from the nation whence we have derived the great body of our laws, and fundamental principles of free government, we have also acquired the judicial exposition of the laws themselves, as precedents, worthy, in my judgment, to be accepted as the very soundest promulgation of what the law originally intended to announce. For myself, I entertain the very highest estimate ’of the learning and purity of the Judges who adorn the Bench of Great Britain, and upon a subject when, under the same laws copied from British statutes into our legislative system, I find the construction of their Courts, I yield to them a deference and consideration based upon my appreciation of their intrinsic value.

In the case at bar, the English Courts have held, in the language of Lord Coke: “A pardon is a work of mercy, whereby the King, either before attainder, sentence or conviction, or after, forgiveth any crime, offense, punishment, right, title debt, or duty,” etc. The power of pardon exists either before or after conviction. This is the doctrine of the British authorities, and the power to pardon, as a royal prerogative, limited in cases of impeachment by act of William III,, may be found as the power granted in the United States Constitution, in express words, with the same limitation. And the Supreme Court of the United States has given to it the same construction. In 18 Howard, 307, the reason for such construction is, that the words used in the Constitution of the United States conveyed to the mind the authority as exercised by the English Crown, etc. And in 4 Wallace, the construction given to the words used in the Constitution were similar to that given in Great Britain, and the power may be exercised before or after conviction. To give a different construction to the words used in our State Constitution would be to overrule the authority of the - Courts of Great Britain, and that of the Suprem.e Court of the United States. For no reason exists, or can be said to exist, which would authorize a different construction, as to the power of the Governor of a State from that of a President or King, over the matters expressly delegated to him by the Constitution of the State. Indeed, our formal adoption of the common law makes it more applicable to our condition than it does to the President.

It is true that these decisions are not legally binding on us, and that, if we differed with the principles upon which they are based, we are free to set up our own opinions. This is clear, and out of this agreement upon principle, it may be urged, with great plausibility, that the terms used must mean, that pardons shall be limited to cases after eonvietion, or, in view of the language used, “ he shall have power to grant reprieves and pardons, to commute penalties, and to remit any part of a sentence for offenses against the State, except in cases of impeachment;” that the word sentence qualifies the preceding provisions granting the power, or that the words “ for offenses ” against the State mean such offenses as are ascertained by trial, under the forms of law. If the meaning of the words used necessarily involve the requisition of a trial to establish the fact of the offense, before the power to pardon becomes vested in the executive, then the same necessity is implied under the very same language used in the Constitution of the United States; for the language there is, “ he shall have power to grant reprieves and 'pardons for offenses against the United States, except in cases of impeachment.” And the opinions of the Attorney Generals, and the decision of the United States Courts have not held the words “for offenses” to mean any such thing. But, again, it may be said that the words “ for offenses,” if it does not mean those found guilty of offenses against the State, violates a fundamental rule of law, that “ all men are presumed innocent until found guilty,” and offenses cannot, in law, exist, until established by proof, by the verdict of a jury. This cannot have sufficient weight to set aside the opinions of such men as Lord Coke, or of the Supreme Bench of the United States, because no man need be tried if he does not want to. JSe may plead guilty. No power can compel him to go through a trial at all if he does not desire to plead not guilty, and the petition for pardon, or acceptance of it, is a confession of the imputed offense; the pardon granted is accepted upon the principle of its confession. This point, made upon this power, has undergone judicial decision and been the subject matter of discussion frequently, and decided as I have stated.

In 7 Peters, United States vs. Wilson, Chief Justice Marshall, a name that adds to a judicial opinion the weight of the highest judicial integrity and the most profound learning, treats a pardon as a plea in bar; and, as stated by Blackstone, 4th volume, 339, it must be pleaded. If pleaded then it is to prevent the very thing the construction contended for insists it cannot prevent, to-wit: a conviction. This construction would upturn the plainest written principles covering the law of pardons.

If we were to set up the individual reasons which might control us, as a new question, under our division of powers of the government, much more could be said against the interference with the executive, with the due course and administration of the laws, after than before conviction. In England, by a fiction, the King is the source of judicial power. He is the chief of all the Courts of law, and the Judges are only his substitutes; and, in criminal cases, as he is regarded the universal proprietor of the kingdom, he is deemed directly concerned in all prosecutions carried on in his name. And here the State is represented in Courts of law, not by the individual principle of executive authority, but by the laws of the land. Much stronger reasons might therefore be given in favor of a pardon before than after Courts had convicted and sentenced the prisoner; that is, if we, for the time, concede that this power is not expressly granted by the people, the source of all power, and is a question of prerogative. But we confine ourselves to the precedents and decisions above stated, and, guided by them, we are of opinion the pardoning power of the Governor of this State is equal to the same power conferred by the Constitution of the United States upon the President, and subject to no other or greater restriction. And the decisions of the English Courts and American Courts upon this subject are uniform and conclusive. And we affirm the principles of construction therein enunciated in the language of the very able and distinguished Judge who presides over the Courts of the United States in this State, delivered by him in his judgment, protecting the property of the citizen from confiscation, upon the pardon granted to the claimant by the President, Mr. Johnson: “Although laws are not framed on principles of compassion for guilt; yet, when Mercy, in her divine tenderness, bestows on the transgressor the boon of forgiveness, Justice will pause, and, forgetting the offense, bid the pardoned man go in peace.”

Holding, as we do, the pardon to be properly within the constitutional power of the Executive of this State to issue, when the petitioner presented his pardon under the Great Seal of this State, reciting the offense and the party, and unconditionally pardoning him therefor, it was the duty of the Court to have received it in evidence upon the hearing of the habeas corpus, and to have respected it as the act of the chief magistrate of this Commonwealth. And the bench warrant and orders of the Justices of the Peace ought to have been set aside, and the party discharged. This was the clear duty of the Judge. In cases of pardon, there no longer exists, in contemplation of law, any offense for the party pardoned to answer; it is blotted out, and ceases to be a cause to deprive him of his liberty. And, in any form, his right to present his pardon is unquestionable, and the duty of all Courts to respect it is not a matter for disputation, where there is nothing set up to render it invalid.

When, by suggestion of fraud in its procurement, the question of its validity is put in issue, of where the identity of the person pardoned, or the fact of its acceptance or delivery, are brought before the Court, in such case, if, upon habeas corpus, it is the duty of the Court to hear the testimony) and pass upon the merits of the particular case, or, if pleaded \ upon the trial, then to hear evidence, and let the jury pass upon the case under the proof. For, while we hold the constitutional power exists in the Executive to grant pardons, we also hold that fraud in their procurement will render then! void. In the case of the Commonwealth vs. Ahl, 43 Pennsylvania State Reports, (7 Wright,) 210, it is declared “A pardon procured by false and forged representations and papers is void.”

When, on the trial, it appears that prisoner had nothing to do with the fraud, still it is void. Ibid. The Act of 1819, in this State, required, in all cases of application for pardon, a certified copy of the evidence should accompany the application, and the principle of the Act was to prevent imposition on the Executive. The rule was a good rule, and, while not applicable to this case, gives the spirit of the law, j that the Executive should have the case before him to decide. '

In the State vs. McIntyre, 1 Jones’ Law Notes, 61 : “When a pardon is pleaded, and it appears from the pardon and the record that the Governor was misinformed, the ¡ pardon was held void.”

We need not multiply cases, as enough has been quoted to show the fact that fraud will render the pardon void. We find no settled rule of practice or law laid down, nor do we intend to lay down more than the recognition of the general rule stated. As to what would or would not amount to fraud, or sufficient fraud to render it void, we deduce from the general rules of decisions, that misrepresentation of the facts material in the ease upon which the Governor acted, and which ought to have prevented the clemency of the Governor, if known, or any concealment of the material facts of the case, or suggestion of false views to the Governor to pro-I cure the pardon, ought to be adjudged in the particular case by the Court or jury, as the issue may be joined.

In the case at bar, the Court ought to have taken the pardon offered as evidence without further proof. Its verity needs no other evidence than the usual issue under the Great Seal of the State. And he should have discharged the prisoner under it, except an issue of fraud was suggested. And if such suggestion were made it was his duty then and there, without a jury, ’■ but, upon the hearing upon habeas corpus, to have heard the evidence and decided the case upon its merits. If there was no fraud proved sufficient to render the pardon void it was his duty to discharge the prisoner. If there was enough proven, he ought to have remanded him; and under the facts in this case, from what appears in the certificate of the Judge, we reverse his judgment, but further direct him to receive the evidence of pardon granted, and if fraud is suggested in the proper mode, to cause an issue to be made, and thereupon hear the testimony offered and adjudge the case.