The New York herald., 1870-12-29


WAS NOT HELD
under any Judgment or sentence OF any court He
mad been arrested ana nea ior tria Dy nrnsr mary
The Circuit Court mad Iemanded him to the custody
Oi tine military officer and tue sole question decided
py the Supreme Court, was tIa that Court has urls.
dctiOn, by haDeus corpus, To review the decision
and inquire whether ne should have been remanded.
There Yves no intimatlon OF an intention to
overrue the cases above cited, nor We're they
overruled II was not suggested that the Court had
Jurisdiction to review a Judgment OF the Circuit
Court on the trial ana CONVICTION OF a person al
legged by Indictment 10 have committed an 0nence
against the laws OF the united States.
ly9COad-It appears thai the petitioner has been
pardoned. Tho petition upoa which the present
motion was founded ~ dated, and was sworn 70 IN
May last. The pardon Is iull and UNCONDITIONAL.
How, then, can the petitioner be placed, by any
order winch ! can make, more Iuily NJ liDery
than he is at this mOmentY II In May nc was under
restraint he ls now as free to go ana come wnere nc
will as is the counsel wn0 made the NOTION And lt
would seem to follow tnat unless Inc Wrt ol naoeas
corpus can be used and treated by me as writ or
error 10 review and in ericct TO reverse the Judg
ment, no occasion exists ior issuing IT, the making
OF this notion after the petitioner received notice
OF hir pardon, though founded on petition sworn
six months ago, assumes that he remains at the
PenireDary bat IT IS not SHOWN nor suggested that
he ~ noL IN iact
to go whenever and wherever ne pleases Indeed,
as The case sta ndS upon this motion II In no
wise appears tnat he is now under any restraint
III not, then can do nothing 10 make him more rree
If issued the writ the return must he that ne Is no
longer at the Penitentlary or that he remains
there because he OF his own present will chooses to
i
II he should choose voluntarily TO come before me
could only say he Is iree TO depart at hls
pleasure IN inns view the motion asks ior
what Il unnecessary for the purpose for
which the writ of habeas corpus IS intend-
ed. The writ is provided and declared by
statute be allowed prlsoners restraint Of liberty
Is the very ground or institutlng inquiry into the
cause or detention. II 1t appeared tnat since the
pardon, and Notwithstanding tae pardon, the war.
den the penllontiaiy holds him in any restrain
case would be presented FOR mvestigasion; put that
Is not the case made BY the papers before Inc, nor
"A. ktt,.A and finf IN hl
Behalf OF the petitioner. II, therefore, had reached
different conclusion upon the point lirst considered
should think IL proper that some evidence of con-
tnued restraint oc FURNISHED.
IL Is urged that q pardnn ~ imperative until
accepted, ana that u does not auirmattveiy sppsar
that this petitioner has accepted the pardon The
opinion OF Chiei Justice Marshall, IN the Unlted
state vs. wilson 4 Pet, lojl Is referred 70. The
decision IN that case settles nothing upon the qucs
ton wnetner, where an unconditional pardon Ia
granted which Tie grantee refuses 10 accept he can
nevertheless alieae tnat he Is restrained OF his
liberty whlle The pardon remains unrevoked
ANA ready for his acceptance a. any moment
he pieaSes, ne having notice thereof The
decision and all that was sad by the
venerable ana learned Chief Justice may be assumed
without aastealenl aud qualifications; but The clr-
canistaaces OF the case and the precise point de-
cided are OF some Importance when sought TO be ap
pied 10 thus notion
There Was tnerc no application for writ OF habeas
corpus, DOR any ciaim Dy the guarantee Vi the par
dOl that nc was held in restraint Of his liberty by
OF the ofencc which the pardon nad forgiven.
Wilson mad been tried anu convicted OF roDbing
the mai aud putting the lie OF tne carrier III
jeopardy on the 2ttn OF November, 1929, ana sem
fenced 10 safier death on the 2 ol JUS, 1889. lie
had also been Indicted for obsiructing the mail and
Tor rob5Ing The MAIL without the agerneut tnat lie
put the lie OF the CARER IN jeopardy by several
other indictments, IN Que Of winch the robbery was
charged 10 have been committed on the same
DAY as the lirsl nained-vi1. November .6 1879.
The President or the United States the
l4tb Of June, 1879, pardo1ed him the CRIME Tor
when he had been sentenced TO death, remlLtiDg
tne penalty with this express sipnasioa, tnat tins
pardon shall not extend 10 any luugnenL which
may o. had or obtained against him III any o.ncr
case or cases now pending before SAID court for
other offences WncreWitJ he may sGtnd ciurgcl.'
Wilson mad, on the eth OF May previous Withdrawn
ms several pleas q not gnlty and pleaded guty 70
ils, the attorney for the United States
MOVED FOR SENTENCE
for those offences, the Court suggested an inquiry
into the effect OF certain parton understood To
have been granted DC. And the counsel for wilson
appeared and on mis- behalf waived AMI declined
any advantage or protection which might DO sup
posed 10 arise from ihe pardon referred to; and
wilson, III person, being cLled upon 10 say whether
he mad anything to say why sentence should not
be pronounced in The case then before the
court, and whether he wished in any man
ner 70 avail himself Of The. pardon referred
10, answered that he had nothing to SAY, aud
that lie did not wish IN any manner 10 avail himself,
in order 10 avoid seatence ~ ths particular Case,
OF the pardon ra;crrcd 10. Questions were certified
10 the upra me Court, and Inc point decided was
tnaI The pardon NOT havlD. been brought Judicaiiy
10 be noticed by the JuaSe u IN any manner 10
AFFECT the judgment Of tie lazy. II VIII De seen that
the doubt here VAS II the crime charged In the last
as that tur Ghc,i he hiu been rarioned was,
ia Tact, the same oAence. though charged
without ne putting ~ Jcopariy. Whe,her was not
necessarily, as matter of law, Included III the
pardon, notwithstanding tconfornaole to such
sslpulatiopl Wilson waved ana ueciincd I'd avail
nir4scl oI u as protection aSa,hst sentence ior
tie inlenor O1cnce. Ana IL Was held that the Court
coW1 not notice IL unless IL was brought Judicialy
uc.ore them Dy plea, mot.ol or otherwise. AS his
ewn voluntary act wilson csdld waive the benefit
OF II for that purpose, Notwithstanding ne had re-
cetye tne oeelt OF II according 10 us actuai intent
A matt na44 tu.,xrh lVAIIr Al H.
cniei Justice Marshall SHOWS that he could not be
forced 10 accept IT Tor te purpose III question; that
pardon may De sometimes granted Oh u condition
~ Nhich prisoner may prefer lle penalty Oh the
offence; That, ike deed, delivery Is essential TO Its
valdlfy. and delivery Is not complete without az
ceptauce. The Attorney General, 1u argument. sus-
gested that even though PARTON might he uncon-
dtonai she prisoner ~ gnt hnk y MS interest To
undergo me punishment III order 10 make hs peace
Win the public, or 70 pay q hhe &c, as evidence oI
THESE VIEWS ARE SUSTAINED
by numerous authorizes cited from the English
ports. Now al tnls may be conceded, and IL most
II hercny grained lhai prisoher may accept or
refuse az unconditional paraon II he secs III. 10 IA
not denied L..at when WIZ oi error lies IRON the
Judgment Inc PRISONER cannof' py a pardon
granted. he prevented from prosecut mr. that writ
10 Obtain reversal Ior error. ne ma1 prefer TO
haNo .he judgment set issue ana vacated or
reversed, pgt mat is not The olcc OF the writ
ot hareas corpus IN such a case, as J tnlnh IS
sho II Dy The cases before lclelIeu TO. II nc pre-
tess u refuse paIdu e Il ~ 40 eoh,iluon 10 say IL
l. viher tnan lls VOLUNTARY act. whatever may be
The motive ana II tse VIII % hdneaS corpus III tne
gwen case 10 elccI wflG error enen IL Is
not obvious tlaG " tlAt WtiS H. can OBTAIN pfic-
ucai reversal oi the Judgment.
TiAd-Tne modoa might oe decided without con-
slterlnp ne scver. couLs ia the iIdicnen OF To-
quiring whether aay error was cvLl.siit,ed on the
Lrai on the motion IN arrest "a me JuIgmcuJ
made before Mr. justice nelson and Judge !.eneaci.
luC ought nor think 10 leave me impression that
ia my opinion the judgment and seatcnce were
Illegal. The subject was
yEaS FULLY DlSCusSEO;
and with or tne leal propositions or the Coun
for the petitioner iuily concur rne important
principle, that where statute imposing penalty or
punishment Tor onence ~ rcpe.ieL, a parry can
not be tried. conYicted and punished alter such re-
peal Tor acs constituting such ohencc, altnough
committed before the rcpea of iao statute, Is not
doubtnl and u he nave even been IN
diglea before the repeat IL cannot law
fuzzy oc tried, convicted and punished
after the repeal; and, stu iurtaer, II
lie nave been tr,ed no judgment and sentence can
be pronounced provided always oneuces committed
prior 10 repeal not served 50 also tue eject
OF u repeal by implication mas be Conceded IL be
the same as II the statute were repealed ny express
terms.
zrat1 bv fhp al