Flavell's Case , 8 Watts & Serg. 197 ( 1844 )

The opinion of the Court was delivered by

Sergeant, J.

The charter to William Penn gave power to him and his heirs and their deputies and lieutenants to remit, release, pardon and abolish (whether before judgment or after) all crimes and offences whatsoever committed against the laws, treason and wilful and malicious murder only excepted, and in those cases to grant reprieves until the king’s pleasure might be known therein. The Constitution of 1776 imitated this modification of the Executive power, substituting the Legislature for the Crown. The power there given was to grant pardons and remit fines in all cases whatsoever, except in cases of impeachment; and in cases of treason and murder to grant reprieves until the end of the next sessions of the Assembly. Under this Constitution it was made lawful for the Executive Council, by the Act of 8th March 1780, upon the prayer of any person under sentence of death for treason or felony, to grant to such person a pardon, so far as respected his life, consonant with the limitations of the constitution, on condition that such person should, within a limited time, depart from this State to foreign parts beyond sea, and that he should not return into this State or any of the United States of America, and on not departing or returning into the United States, the pardon to be void, and he should suffer death according to the sentence pronounced against him. 1 Smith’s Laws 498. This Act shows that conditional pardons are by no means strange to the jurisprudence of Pennsylvania, even though the condition amounted to banishment or expatriation.

When, however, the constitution of 1790 came to be formed, all restrictions and limitations on the power of pardon by the executive were laid aside, and it was given fully, absolutely, and in its most comprehensive extent. By article 2, section 9, it was declared that the governor shall have power to remit fines and forfeitures, and grant reprieves and pardons, except in cases of impeachment. And by our present constitution of 1838, though several propositions were made in the convention to limit and control the exercise of the power of pardon by the executive, they were overruled, and the provision left as it stood. Now no principle is better settled than that for the definition of legal terms and construction of legal powers mentioned in our constitution and laws, we must resort to the common law, where no Act of Assembly, or judicial interpretation or settled usage has altered their meaning. The Act of 28th January 1777, the second Act passed by our Assembly after the revolution, expressly enacts, that the common law and such of the statute laws of England as had theretofore been in force, except those particularly excepted, should continue to be in force. By the common law there are some acts of such a nature that a condition subsequent cannot be attached to them from its repugnancy to the act done: there are others to which any condition may be annexed which the party chooses, and amongst the latter are pardons. The distinction is clearly laid down by Lord Coke, Co. Lit. 274 b, who says an express manumission of a villein cannot be on condition, for once free in that case and ever free. Also an attornment to a grantee upon condition, the condition is void because the grant is once settled. But this is to be understood of a condition subsequent and not of a condition precedent, for in both these cases the condition precedent is good. But letters patent of denization made to an alien may be either upon condition subsequent or precedent. And so may the king make a charter of pardon to a man of his life upon condition, as is above said. To the same effect are Hawkins, Blackstone, Chitty, and other writers on criminal law. A pardon, therefore, being an act of such a nature as that by the common law it may be upon any condition, it has the same nature and operation. in Pennsylvania, and it follows that the governor may annex to a pardon any condition whether precedent or subsequent not forbidden by law, and it lies upon the grantee to perform the condition. If he does not, in case of a condition precedent, the pardon does not take effect; in case of a condition subsequent, such as this before us, the pardon becomes null; and if the condition is not performed, the original sentence remains in full vigour, and may be carried into effect. The propriety or wisdom of granting such pardons, or of the terms and conditions annexed, must rest with the executive, to whom the constitution entrusts this authority.

Prisoner discharged.