The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1860-03-16

| On the other hand, is the awful RESPONSIBLE
| ity Of permitting the sacrifice of q human life
there being yet Sufficient cause for pardon; and
on the other, the no less awful Apprehension
| of endangering the safety OF society, promoting
| q contempt for law, and encouraging the mob
spirit by ill-advised interference with the regu.
| lar course of Justice. - ,ssr4 =. -
It seems to me plain that the gardening pow
er should never be exercised except for cause
shown, it may be some defect in the proceed.
ings, some doubt about the guilt Of the convict
some new evidence discovered, some mitiga-
ting circumstances or other reasons, which
should be exhibited to the proper authority,
and that interposition of that authority asked.
Mere individual sentiment, far more mere
sympathy, should not be sufficient to prompt
to executive interference.
This responsibility, if the Legislature have,
or can assume the power to reprieve or par.
don, is no less weighty upon each member OF
the Legislature, than if he alone must deter
mine the whole matter. The greater number
concerned in making the determination, would
but nothing further, which is precisely the
reason why the power is not vested in Legis.
latives. .. 49,. = -.
1t will not be denied that every legislator
should act as considerably, examine the cir.
cumstances Of each case as fully and require
oS 6OOu LCooOuS lOI oCChluk ny al 6udCGWcQG
to grant pardon, Communication or reprieve, as
If he were himself the Executive, acting indi.
vidually. Nor can the Governor properly sign
an act of that nature, except upon such CON
sideratiOn and under such circumstances as
would have induced him to interpose without
such Legislative proceeding. ..
l shall therefore indicate the reasons which
influence my judgment as to the prOpriety of
any interference in the execution of the law in
the case of Anna Bilansky, by the Legislature
or otherwise, after l have assigned my objec
ton to the bill as an usurpation of Executive
prerogative by the legislative branch of the
government. '
In determining the constitutional question of
the power of the Legislature to commute the
sentence of convict, three enquiries are ne.
cessary:
Ist Where is the pardoning power vested !?
power to commute?
Sd. If conferred apon one department of
the government can it be legitimately eXer-
ciscd by any other?
Under the English law this power is one of
the prerogatives of the Crown. Althouge Par.
Lament which, untrammelled by constitutional
restr ,ctiOn, is supreme, has in several instances
exercised it. In this country the question
whether it is inherent in the executive, in the
absence of express provision, has never been
adjudicated; but it is believed that the ques
ton is determined by express constitutional
provision in every State of the Union.
The language of our Constitution is as fol-
lows:
"The Governor shall have power to grant
reprieves and pardons after conviction for Of
fences against the State, except in cases of i'm.
parchment"
The nicely arranged system of checks and
balances which Is the basis of all our Ameri
can governments. has wisely conferred this
power upon the Executive. The Legislature
defines the crime and prescribes the penalty !;
Tat l.
case, and with its construction neither Legisla.
ture nor Executive can interfere. To the Gov
ernOr is entrusted the power to enforce the en-
actmentS of the one and the decisions of the
other; and german to this is the exercise of
Executive clemency, the power to mitigate
the rigOr and stay the arm of the law in cases
which commend themselves to his mercy.
With the enactment and construction of the
law, the powers of the other departments end
with its execution, that OF the executive COM
mences. AS the wisdom and justice of par
ticular laws are in the sole discretion of the
prerogatve of the Judiciary, so the time and
manner OF their execution is properly confded
to executive discretion.
Secondly. Does the power to pardon include
the power to commute?
The Legislature having prescribed the pun.
lshment, can 1t be altered or modified by the
Governor vef
Communication is defined by all writer's on
criminal jurisprudence as conditional pardon.
And upon the general principle that the great
er includes the less, it is difficult to see why
the power to grant an absolute pardon, and to
absolve the offender from all the consequences
of his crime, should not include the power to
modify the penalty. --- ..-
Every pardon, whether technically, absolute
or conditional, is granted upon the condition
of its acceptance by the offender. Numerous
cases are cited by the criminal authors, of par.
dons granted by the executive upon the cond
ton that the convict should submit to lesser
punishment, as Punishment or Imprisonment.
Any condition, whether precedent or subse
quent, not prohibited by law, may be annexed
to the pardon; if accepted, the modified SEN
tence is executed; if not, the law takes its
course, and the original sentence is unaffected.
Thirdly. If the pardoning power is confer
red upon one department., can it be legitimately
exercised by any other?
The Constitution of Minnesota declares
That the powers of government shall be divided into
three distinct departments, legislative, executive and
judicial and person or persons belonging to or cons
5eepeng to eher Se
in the instances expressly provided in this
think it has been demonstrated that the
power of Communication is vested in the execa.
tive and there is certainly no clause in the con.
StitutiOn providing for its exercise by any
other department. 1t would seem, therefore,
that the question is too plain to require further
argument.
If the law making power can interfere with
the province of the Governor, why may not the
Judiciary exercise the same prerogative of
mercy? In that case a writ of mandanaus from
the Supreme Court commanding the Governor
to issue his pardon under the Great Seal of the
State, would avoid the embarrassing conse-
quences of the veto power, and furnish much
more speedy and e6ectual remedy.
Again, if the Legislature can legitimately
exercise any power in this particular, are there
not other executive prerogatives which may
with equal propriety be welded by the legisla-
tive branch? May not that body assume the
control OF the military and naval forces of the
State, call out those forces at will station them
about the capitol, assume absolute and ire
sponsible power? In that event, sovereignty
departs from the people end rests with their re-
representatives..
These consequences may not he probable,
but they are logically possible, and the argu.
ment which supports any encreachment, how
ever slight, furnishes precedent for greater
and more dangerous inrOads.
For this reason, Withhold my approval from
the bill under consideration.
But, though returning this act for its uncon.
stitutionality. should still be inclined, from
respect to the representatives of the people, to
consider this action of majority of the Legis.
fhair