Glasgow weekly times. (Glasgow, Mo.) 1848-1861, 1857-02-19
From the ST. Louis Republican.
The Case Of Etheldred ]. Hays.
JEFFERSON CRY, Jan, 30, 1857


JEFFERSON CRY, Jan. 30, 1857.
A case oIconsiderable interest will be taken
upby the Supreme Court to. day or to-mor-
row, involving some points that have never
yet been adjudicated upon BY the Court in the
State. The matter win be brought before
the Court upon writ Of babeaS corpus, and
the petitioner, Elhedred ]. Hays, now a
convict in the Penitentiary. He alleges that
IN May. in 1855, he was found guilty Of
murder in the first degree, in the Circuit
Court Of Randolph county, and was SEN
fenced by the Court TO receive end suffer
capital punishment on the 18th day of July
1856 -.-s
After tLe conviction and sentence by the
Court, and before the day fixed for his exc.
cution, his Excellency, The then Governor
Of Missouri, interposcd, the execution of the
original sentence was arrested, and he was
ordered TO be imprisoned in The State peui-
Tertiary for the remainder Of his lite.
The petitioner further alleges, that the
, Sheriff. OF the county Of Randolph never held
an inquest touching the insanity of the pc
titioner before the issuing Of the letters pa
tent committing his sentence, after the sem
tence OF the Court, nor were any such pa
pers ever certified to the Governor before
.ihe letters issued. And by the authority of
these letters patent he was delivered to the
warden Of the penitentiary, where he is now
confined.
He also alleges that his confinement is
unlawful, because the Governor had no pow
er to make an order for his confinement in
prison even after lie had spared his lie in
mercy.
Upon the petition as set forth, the Court
issued the writ.
Judge Morrow Of Cole, and Jo Davis,
Esq, 0! Howard, appear for the petitioner
The first point involved is, has the Cover
nor Of Missouri, under rhc constitution aud
laws OF the State, power and authority, by
bis executive order, 10 substitute new and
different punishment for that imposed by the
Court upon person sentenced to capital
punishment? In answer 10 the oath sec
tion, Of article 6 of the act concerning prac-
tice in criminal cases, which: "In all cases
in which the Governor is authorized by the
constitution 10 grant pardons, he may grant
the same with such conditions and under
such restrictions as he may think proper
In this case, however, it is alleged there
is no condition attempted, and no words of
condition are contained in the pardon. The
argument used, then, is, that the changing
the capital punishment is, by the very words
OF the pardon, destroyed the day for the ex.
ecution passed and gone, and the punishment
is, therefore, RENTED. Further, it is ar
gued that there is no condition or provision
expressed in the pardon in the usual forms
the petitioner did, or could not therefore,
assent TO it; but the pardon is based upon
mere grace and favor" and he is ordered
into confinement in the penitentiary for life,
Internationally and absolutely (which exer-
else Of power is denied. Various authori-
ties are cited in support of this doctrine.-
The conclusion, therefore, is, that the grant
OF pardon in this case being, in effect and
virtually, gift Of the life of the convict to
him, and an attempt to impose another and
different mode of punishment, is not with
in the province Of the Executive. The order
for his Improvement was void, and the grant
stands good.
It was agreed by the State and the petit
TONER, that the facts all appear in the appli-
cGllnn, and that the case be tried and dis
posed OF upon the application Of the writ
just as if the same had been issued and re-
turned 10 the court, and that + petitioner
need not be brought before the court for the
purpose of trial.
II would not prove very funny proceed
ing TO the prisoner, if the Court, in its wis
dom, shall decide that the Communication in
this instance was A mere executive order.
without any condition annexed, and in con-
travenIlon of the constitution and laws, and
therefore null and void In such an event
the pardon might be construed TO be either
absolute, or else place the petitioner in the
same condition as when he was under SEN
tcnce Vi death with the gallows still before
hiia-a prospect not less ilattering than the
gloomy abode Of the State prison. l appre-
lcni That a change TO the striped garb or uni
form Of The State, would be more acceptable
than funeral shroud