Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-19
THE EFFECT or PARDONs AND AN

Z which the courts and writer's have cauS,
il to assume, does not consist Of the log
cal consequences that flow from a sing
}. great and plain principle. This, iudeel
- ia the characteristic defect Of EngIis
law.
blackstone says, a Comm. 40l) II
y effect OF such pardon by the king is
5 make the offender new man 30 acqu
. him Of all corporal penalties and fol
y FIXTURES annexed to that ofiense for Whic
be obtains his pardon and not 50 D33c
TO restore his former, as TO giUe htnl q me-
y credit and capacity" \ pardon, b
D adds, would not restore or purify th
- blood after an attainder; nor could sOr
born before the pardon, be heir TO hi
g father: hut a son born after the paTdol
could inherit, if he had no elder brothe
e living. born before the attainder, il
g which case the land would eschest pT
defcctu hosredjs.
Bacon says, 1t seems agreed that par
, don Of treason or felony, even after al
attainder, so far clears the party from thi
= infamv and all other consequence
thereof, that he may have an actor
. against any who shall Gfterward cal
him traitor or felOn; for the pardon
makes him, as il We're, new man
, Bac0u's Abr P1r10li, C. n. And t@4.ht
same effect is Hawkins, b. ., c. 81, t4S
It has been said that pardon takes
away the guilt, as well as the punish
ment, OF the Offense. COddb9toa q
wilkins. TT0bart, 81, 81. SdrLsie OF Sian.
der, $50. III Baum q. Cause, 5 nh 1856
the Court said that this was neither
sound law nor good morals; that pardon
removed the legal infamy OF the crime,
90 that the offender would be a compe-
tent witness, but gould not take away
guilt or wash out the moral stain. Con-
seguentiy the Court held that it is not
acli0nable TO say of one who had been
pardoned for larceny, that he had been q
thief; and that a crime, though par
doned will still go 10 the credit or 3 wit
hess.
In The Nliter Of DemiBg, 10 Joda.
233, 4S2. the Court said that the limita-
1 tion to the operation of pardon on the
autecedeut right Of party was, =" that II
cannot divest any person Of any right or
interest which the law had permitted to
. be acquired and vested, in, consequence
Of the iulgment:I and he'd pardOued
convict to be restored to his rights and
duties as a parent, and entitled to the
custody of his infant children, who had
been placed under the care Of guardian
during his civil death. With that excep-
I ton, il was held that a person pardoned
was acquitted Of all the penalties an
uexed to the conviction.
( This. as will be seen, agrees with the
] French law, and the exception is found
/ there. as well as in the English law, for
( both flowed, rs 10 pardOns and amnes-
I ties, from a common source ; and il is
due to the principle OF nOn-reToactIvIty,
OF the HOn-retrospective operation OF
. Srafutas and executive acts.
/ In The People 4. Pedse, 3 John. Cas-.
333. the Court held that pardon restored
the party's competency as a witness,
T though q clause 10 il declared that moth
ing mentioned in it was intended to re-
iieve him from the legal disabilities
arising from the conviction and sentence.
/ This clause was held Fepugnant, and
treated as surplusage. That pardon
. restoye5 competency 10 testify was also
decided in H1BmG9 @. COStIr, = Fh0Tt
453. and Perkins 2 NcUeaS, p Pick 21I.
All the Judges OF England, in the 18th
year Of Elizabeth. were asked for an
opinion on ''tts general pardon of Zo
E'j-.n as to the exception Of burglary
in that pardon. Lord Coke, after giving
the decision, says: "One Burton, par
son of lsbock in Eeicestershire, was de-
prived, ammo y EhZ., for adultery COM
u
4 the general pardon, > April, l3 Eiz ,
the Offeuses of adultery inter ain were
usldaned before the 14th of February,
then last past, and il was said that be
fore the pardon, criHiCa ddlHterij prosd.
transmit iu rem judicdt., and therefore
. the sentence remained in force ana IL
was strongly urged, that the sentence
should not by the relation OF the said
pardon be made void, but at the most
voidGbe, and therefore, until Iu be re-
+ versed by another sentence, the depriva-
lial stood in force and be who was
after his deprivation admitted, iusti-
tUrei and iuducted, remained parsOn
liil the first sentence by another he an
nullpi: but it was answered and re-
solved that the said Burton, who was
deprived, by force of the said pardon Is
now become parsOn again, without any
I sentence declaring the said deprivation
to be void; for by die pardon, the adult
ary, which was the cause and iounda-
li0H Cf the sentence, is discharged, and
/ by consequence all that stands or de-
Dend- upon the same foundation, Is also
T discharged. And no laches was in the
uarsou, or fault in pleading; for at the
time Of the sentence he had not any
matter in discharge, bat it came er post
fyef0. by relation of the general pardon
and bg .#,3gsteH' a. late, and therefore
the validity OF it shall be discussed by
tle Judges Of The law, and the party de-
prived shall not be driven to suit IN
ihe Ecclesiastical Court, to have re
dress therefor. 90. Is, "a.
II the adultery in the case was " dis
oi0rgs3 by the pardon, and the party
/ " became U0rsOn uquU.n by effect Of
/ the pardon alone, an attorney Of the
F supreme Court of the United States,
p3rdoHe3, becomes by tie pardon Ar at
,gruey of that court again, and cannot
be excluded by any test oath wbatso-
ever. The Legislature cannot, IN that
manner restrict the effects OF a pardon
. which the President has constitutional
power to grant.
+ Ia trnutfR's Case, 60. 4e, it was
he'd That where, in an act Of general
. pardon, f0rfeItures, and profits due the
. 2leeH " were excepted and not released,
. the offense itself was not excepted, and
the Imprisonment and all the capital
punishment were paIdoned. All per-
s0ual disability or iucompetency, CON
-aQuent on the oftense or on the conVie-
non Of it, were for the same reason re-
moved only those things to which the
/ Queen bad title ky the ofIeuse, were
excepted No legislation can narrow
the Presidents constitutional power 20
. remove all disabilities by his pardon
. whether iJ attempts this by direct or by
. Indirect legislation. And il i5 TO be
noted that the case Just quoted was de-
cided hi t5e STAR CHANHER.
As 20 al disabilities consequent on
treason, that is 90 be said, which was
said in IUEgbGa's Case, Co. 40, as to
ameTcemeuts for contempt, that al
though the pardon comes bei9re the
Judgment, yet, the original cause O!
the amefcemeut being pardoned, the
/ enforcement Itself by consequence is
parJouei. The cause being dis
charged" " the consequences end.
81 in Biqgia's Case, Co., 90 b., the
statute having provided that, after
clergy allowed and burning in the hand
ihs prisoner should be presently dis
charged and delivered out of prison
and the Queen having pardoned the
burning in the hand, it was held that
90 for this cause the burning Of the hand
being discharged the party also shall be
discharged Of his imprisonment by good
construction of the same act; other
wise the party would be lawfully dis
charged Of his punishment and yet re-
maiu perpetually ia prison. So, If by
a test oath one can be prohibited ane
disqualified and disabled 10 work at hi'
profession, Notwithstanding his pardon
he would he lawfully discharged Of bis
punishment, and vet remain perpetual,
punished by q disability, and virtually
su exile under his own skies, a Parial
Eth no civil rights, one OF "a new cast'
created by legislation in violation Of tht
Constitution and the powers Of th,
President, ami equally against public
policy and injurious TO the public in
teTest.
And we may incidentally note, tha
even I'm the star Chamber, " il the par
doa bad beeG obtained before the sen
tenee, then the parton had discharge
the whole; for then the Court could no
have proceeded 10 any sentence OF tn
principal, and by consequence not Of tn
costs, which are but accessory" Hair
case, g. %. 81 D.
In jain JrONOp'S case, s Co. 6S, tn
question arose whether general pardo
; discharged q man eXcom municated, G
. The communication; but the certid
D cate of accommodation was held in
sufficient, aud the question as 10 th
effect OF the pardon was not reached.
But in a case at MiGhaelmas Term,
James l., entitled Prohibition , Co. 76 .
it was determined that man could nc
p be eXc0mmUHicated after a general paI
p don and that if he was, he might hav
. either Of three remedes,-a suit out {
Chancery, commanding the Bishops