# Ex parte in the Matter of Wells/Opinion of the Court

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* Dissenting Opinions McLean Curtis
United States Supreme Court
59 U.S. 307
Ex parte in the Matter of Wells
The petitioner was convicted of murder in the District of Columbia, and sentenced to be hung on the 23d of April, 1852. President Fillmore granted to him a conditional pardon. The material part of it is as follows: 'For divers good and sufficient reasons I have granted, and do hereby grant unto him, the said William Wells, a pardon of the offence of which he was convicted upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary of Washington.' On the same day the pardon was accepted in these words: 'I hereby accept the above and within pardon, with condition annexed.'
An application was made by the petitioner to the circuit court of the District of Columbia, for a writ of habeas corpus. It was rejected, and is now before this court by way of appeal.
The second article of the constitution of the United States, section two, contains this provision: 'The President shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.'
Under this power, the President has granted reprieves and pardons since the commencement of the present government. Sundry provisions have been enacted, regulating its exercise for the army and navy, in virtue of the constitutional power of congress to make rules and regulations for the government of the army and navy. No statute has ever been passed regulating it in cases of conviction by the civil authorities. In such cases, the President has acted exclusively under the power as it is expressed in the constitution.
This case raises the question, whether the President can constitutionally grant a conditional pardon to a convicted murderer, sentenced to be hung, offering to change that punishment to imprisonment for life; and if he does, and it be accepted by the convict, whether it is not binding upon him, to justify a court to refuse him a writ of habeas corpus, applied for upon the ground that the pardon is absolute, and the condition of it void.
The counsel for the prisoner contends that the pardon is valid, to remit entirely the sentence of the court for his execution, and that the condition annexed to the pardon, and accepted by the prisoner, is illegal. It is also said that a President granting such a pardon assumes a power not conferred by the constitution-that he legislates a new punishment into existence, and sentences the convict to suffer it; in this way violating the legislative and judicial powers of the government, it being the province of the first, to enact laws for the punishment of offences against the United States, and that of the judiciary, to sentence convicts for violations of those laws, according to them. It is said to be the exercise of prerogative, such as the king of England has in such cases; and that, under our system, there can be no other foundation, empowering a President of the United States to show the same clemency.
We think this is a mistake arising from the want of due consideration of the legal meaning of the word pardon. It is supposed that it was meant to be used exclusively with reference to an absolute pardon, exempting a criminal from the punishment which the law inflicts for a crime he has committed.
But such is not the sense or meaning of the word, either in common parlance or in law. In the first, it is forgiveness, release, remission. Forgiveness for an offence, whether it be one for which the person committing it is liable in law or otherwise. Release from pecuniary obligation, as where it is said, I pardon you your debt. Or it is the remission of a penalty, to which one may have subjected himself by the non-performance of an undertaking or contract, or when a statutory penalty in money has been incurred, and it is remitted by a public functionary having power to remit it.
In the law it has different meanings, which were as well understood when the constitution was made as any other legal word in the constitution now is.
Such a thing as a pardon without a designation of its kind is not known in the law. Time out of mind, in the earliest books of the English law, every pardon has its particular denomination. They are general, special or particular, conditional or absolute, statutory, not necessary in some cases, and in some grantable of course. Sometimes, though, an express pardon for one is a pardon for another, such as in approver and appellee, principal and accessary in certain cases, or where many are indicted for felony in the same indictment, because the felony is several in all of them, and not joint, and the pardon for one of them is a pardon for all, though they may not be mentioned in it; or it discharges sureties for a fine, payable at a certain day, and the king pardons the principal; or sureties for the peace, if the principal is pardoned, after forfeiture. We might mention other legal incidents of a pardon, but those mentioned are enough to illustrate the subject of pardon, and the extent or meaning of the President's power to grant reprieves and pardons. It meant that the power was to be used according to law; that is, as it had been used in England, and these States when they were colonies; not because it was a prerogative power, but as incidents of the power to pardon, particularly when the circumstances of any case disclosed such uncertainties as made it doubtful if there should have been a conviction of the criminal, or when they are such as to show that there might be a mitigation of the punishment without lessening the obligation of vindicatory justice. Without such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in that attribute of deity whose judgments are always tempered with mercy. And it was with the fullest knowledge of the law upon the subject of pardons, and the philosophy of government in its bearing upon the constitution, when this court instructed Chief Justice Marshall to say, in The United States v. Wilson, 7 Pet. 162: 'As the power has been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.' We still think so, and that the language used in the constitution, conferring the power to grant reprieves and pardons, must be construed with reference to its meaning at the time of its adoption. At the time of our separation from Great Britain, that power had been exercised by the king, as the chief executive. Prior to the revolution, the colonies, being in effect under the laws of England, were accustomed to the exercise of it in the various forms, as they may be found in the English law books. They were, of course, to be applied as occasions occurred, and they constituted a part of the jurisprudence of Anglo-America. At the time of the adoption of the constitution, American statesmen were conversant with the laws of England, and familiar with the prerogatives exercised by the crown. Hence, when the words to grant pardons were used in the constitution, they conveyed to the mind the authority as exercised by the English crown, or by its representatives in the colonies. At that time both Englishmen and Americans attached the same meaning to the word pardon. In the convention which framed the constitution, no effort was made to define or change its meaning, although it was limited in cases of impeachment.
We must then give the word the same meaning as prevailed here and in England at the time it found a place in the constitution. This is in conformity with the principles laid down by this court in Cathcart v. Robinson, 5 Pet. 264, 280; and in Flavell's case, 8 Watts & Sargent, 197; Attorney-General's brief.
A pardon is said by Lork Coke to be a work of mercy, whereby the kind, either before attainder, sentence or conviction, or after, forgiveth any crime, offence, punishment, execution, right, title, debt or duty, temporal or ecclesiastical, (3 Inst. 233.) And the king's coronation oath is, 'that he will cause justice to be executed in mercy.' It is frequently conditional, as he may extend his mercy upon what terms he pleases, and annex to his bounty a condition precedent or subsequent, on the performance of which the validity of the pardon will depend, (Co. Litt. 274, 276; 2 Hawkins Ch. 37, § 45; 4 Black. Com. 401.) And if the felon does not perform the condition of the pardon, it will be altogether void; and he may be brought to the bar and remanded, to suffer the punishment to which he was originally sentenced. Cole's case, Moore, 466; Bac. Abr., Pardon, E. In the case of Packer and others Canadian prisoners-5 Meeson & Welsby, 32, Lord Abinger decided for the court, if the condition upon which alone the pardon was granted be void, the pardon must also be void. If the condition were lawful, but the prisoner did not assent to it, nor submit to be transported, he cannot have the benefit of the pardon-or if, having assented to it, his assent be revocable, we must consider him to have retracted it by the application to be set at liberty, in which case he is equally unable to avail himself of the pardon.
But to the power of pardoning there are limitations. The king cannot, by any previous license, make an offence dispunishable which is malum in se, i. e. unlawful in itself, as being against the law of nature, or so far against the public good as to be indictable at common law. A grant of this kind would be against reason and the common good, and therefore void, (2 Hawk. C. 37, § 28.) So he cannot release a recognizance to keep the peace with another by name, and generally with other lieges of the king, because it is for the benefit and safety of all his subjects, (3 Inst. 238.) Nor, after suit has been brought in a popular action, can the kind discharge the informer's part of the penalty, (3 Inst. 238;) and if the action be given to the party grieved, the king cannot discharge the same, (3 Inst. 237.) Nor can the king pardon for a common nuisance, because it would take away the means of compelling a redress of it, unless it be in a case where the fine is to the king, and not a forfeiture to the party grieved. Hawk. C. 37, § 33; 5 Chit. Burn. 2.
And this power to pardon has also been restrained by particular statutes. By the act of settlement, 12 & 13 Will. III. c. 2, Eng., no pardon under the great seal is pleadable to an impeachment by the Commons in Parliament, but after the articles of impeachment have been heard and determined, he may pardon. The provision in our constitution, excepting cases of impeachment out of the power of the President to pardon, was evidently taken from that statute, and is an improvement upon the same. Nor does the power to pardon in England extend to the habeas corpus act, 31 Car. II. c. 2, which makes it a premunire to send a subject to any prison out of England, &c., or beyond the seas, and further provides that any person so offending shall be incapable of the king's pardon. There are also pardons grantable as of common right, without any exercise of the king's discretion; as where a statute creating an offence, or enacting penalties for its future punishment, holds out a promise of immunity to accomplices to aid in the conviction of their associates. When accomplices do so voluntarily, they have a right absolutely to a pardon, 1 Chit. C. L. 766. Also, when, by the king's proclamation, they are promised immunity on discovering their accomplices and are the means of convicting them, Rudd's case, Cowp. 334; 1 Leach, 118. But except in these cases, accomplices, though admitted according to the usual phrase to be 'king's evidence,' have no absolute claim or legal right to a pardon. But they have an equitable claim to pardon, if upon the trial a full and fair disclosure of the joint guilt of one of them and his associates is made. He cannot plead it in bar of an indictment for such offence, but he may use it to put off the trial, in order to give him time to apply for a pardon, (Rudd's case, Cowp. 331; 1 Leach, 115.) So, conditional pardons by the king do not permit transportation or exile as a commutable punishment, unless the same has been provided for by legislation. See 39 Eliz. c. 4 & 5 Geo. IV. c. 84, a consolidation of all the laws regulating the transportation of offenders from Great Britain.
Having shown, by the citation of many authorities, the king's power to grant conditional pardons, with the restraints upon the power, also when pardons for offences and crimes are grantable of course, and when a party has an equitable right to apply for a pardon, we now proceed to show, by the decisions of some of the courts of the States of this Union, that they have expressed opinions coincident with what has been stated to be the law of England, and more particularly how the pardoning power may be exercised in them by the governors of the States, whose constitutions have clauses giving to them the power to grant pardons, in terms identical with those used in the constitution of the United States.
In the constitution of the State of Pennsylvania, of 1790, it is declared in the 2d article, section 9, that the governor shall have power to remit fines and penalties, and grant reprieves and pardons, except in cases of impeachment.
Sargeant, Justice, said in Flavel's case, 8 Watts & Sergeant, 197, 'several propositions were made in the convention which formed the constitution of 1838, to limit and control the exercise of the power of pardon by the executive, but 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 when no act of assembly, or judicial interpretation, or settled usage, has altered their meaning.'
Then proceeding to show the nature and application of conditions, the learned judge remarks: 'And so may the king make a charter of pardon to a man of his life, upon condition. 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 subsequent or precedent, not forbidden by law. And it lies upon the grantee to perform the condition; or if the condition is not performed, the original sentence remains in full vigor and may be carried into effect.'
To this case we add those of the State v. Smith, 1 Bailey's S.C.. Rep. 283, 288; also Addington's case, in the 2d volume of the same reporter, p. 516; also Hunt, ex parte; also that of the People v. Potter, N. Y. Legal Observer, 177; S.C.. 1 Parker Criminal Reports, 4; and the case of The United States v. Geo. Wilson, 7 Pet. 150.
But it was urged by the counsel who represents the petitioner, that the power to reprieve and pardon does not include the power to grant a conditional pardon, the latter not having been enumerated in the constitution as a distinct power. And he cited the constitutions of several of the States, the legislation of others, and two decisions, to show that when the power to commute punishment had not been given in terms, that legislation had authorized it; and that when that had not been done, that the courts had decided against the commutation by the governors of the States. And it was said, so far from the President having such a power, that, as the grant was not in the constitution, congress could not give it.
It not unfrequently happens in discussions upon the constitution, that an involuntary change is made in the words of it, or in their order, from which, as they are used, there may be a logical conclusion, though it be different from what the constitution is in fact. And even though the change may appear to be equivalent, it will be found upon reflection not to convey the full meaning of the words used in the constitution. This is an example of it. The power as given is not to reprieve and pardon, but that the President shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. The difference between the real language and that used in the argument is material. The first conveys only the idea of an absolute power as to the purpose or object for which it is given. The real language of the constitution is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them. A single remark from the power to grant reprieves will illustrate the point. That is not only to be used to delay a judicial sentence when the President shall think the merits of the case, or some cause connected with the offender, may require it, but it extends also to cases ex necessitate legis, as where a female after conviction is found to be enceinte, or where a convict becomes insane, or is alleged to be so. Though the reprieve in either case produces delay in the execution of a sentence, the means to be used, to determine either of the two just mentioned, are clearly within the President's power to direct; and reprieves in such cases are different in their legal character, and different as to the causes which may induce the exercise of the power to reprieve.
In this view of the constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms.
The mistake in the argument is, in considering an incident of the power to pardon the exercise of a new power, instead of its being a part of the power to pardon. We use the word incident as a legal term, meaning something appertaining to and necessarily depending upon another, which is termed the principal.
But admitting that to be so, it may be said, as the condition, when accepted, becomes a substitute for the sentence of the court, involving another punishment, the latter is substantially the exercise of a new power. But this is not so, for the power to offer a condition, without ability to enforce its acceptance, when accepted by the convict, is the substitution, by himself, of a lesser punishment than the law has imposed upon him, and he cannot complain if the law executes the choice he has made.
As to the suggestion that conditional pardons cannot be considered as being voluntarily accepted by convicts so as to be binding upon them, because they are made whilst under duress per minas and duress of imprisonment, it is only necessary to remark, that neither applies to this case, as the petitioner was legally in prison. 'If a man be legally imprisoned, and either to procure his discharge, or on any other fair account, seal a bond or deed, this is not duress or imprisonment, and he is not at liberty to avoid it. And a man condemned to be hung cannot be permitted to escape the punishment altogether, by pleading that he had accepted his life by duress per minas.' And if it be further urged, as it was in the argument of this case, that no man can make himself a slave for life by convention, the answer is, that the petitioner had forfeited his life for crime, and had no liberty to part with.
We believe we have now noticed every point made in the argument by counsel on both sides, except that which deduces the President's power to grant a conditional pardon, from the local law of Maryland, of force in the District of Columbia. We do not think it necessary to discuss it, as we have shown that the President's power to do so exists under the constitution of the United States.
We are of opinion that the circuit court of the District of Columbia rightly refused the petitioner's application, and this court affirms it.
Mr. Justice Curtis and Mr. Justice Campbell dissented as to the jurisdiction, and Mr. Justice M'Lean from the judgment of the court.

## Notes

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