Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-03-28
ANOTHER BLUNDER.
The Presidents Power 60 Commute a
Sentence-DOubts as to iss Existence
-CommeHls ON the 0sBFfen Case--An
TmnOrtaut Precedent

The Presidents Power to Commute q
sentence-D0ubts as to iss Extstencs
--Conmenss ON the 0sBrfen Case-Au
Important Precedent.
Correspondence Of the New York Tribune.
| WASHINGTON, March 22.--It is suggest.
ed to-day that the counsel for the murderer
| O'Brien, whose sentence of death has been
commuted TO imprisonment for life by the
President, might ask for bis discharge On a
writ Of habess corpus, on the ground that
| the President has no power to sentence a
criminal to any punishment, and that the
conditions which he appended to his par
don Chat O'Brien should agree to submit
to Imprisonment for life) were void.
The President is, by the second section
of Article IL. of the Constitution Of the
United States, given power $50 grant re-
prisves and pardons fer offanses against the
Unite' States, except in cases of impsach-
ment" Some acts have been passed by
Congress regulating the exercise of this
power by the President in cases arising in
the army and navy, but there is no law re-
lating to its limitation outside of those
branches of service. If the case should
collie before the Supreme Court now, its
decision would be looked for with great in
terest, as many good lawyers have not been
satisfied with the opinions already given by
that trib nal.
In 1858 President Fillmore committed
the sentence of VIM. Wells, convicted of
murder in one of the courts of this District
and sentenc d to be hanged, to imprison-
ment for life; that is, he pardoned him on
the same condition that President Grant
has made in the case of O'Brien, and this
was the first instance of the kind that ever
occurred. The man was afterward taken
before the United States Circuit Court for
the District on writ of habess corpus, and
that tribunal having refused to dis
charge him, the case was appealed
to the Supreme court. There it was
argued that the pardoning power of the
President was simple and absolute in its
nature; that he had no right to legislate a
new punishment for the crime of murder in
the case of Wells, and then proceed, after
pardoning him, to sentence him to impris-
onment for life; that the Communication of
sentence consisted of two distinct acts-frst
the pardon, which nobody doubted the
Presidents power to grant, and secondly
sentence to imprisonment, which it Was de-
MED he bad power to pronounce.
The opinion of the Court, concurred in
by all but three of the Judges, was that the
pardoning power of the President, given
him by the Constitution, must be defined
by the construction put upon the similar
power exercised by the sovereigns of Great
Britain at the time our Constitution was
framed, and, as the right of the King of
England at that time 30 commute senten.
ces or grant conditional pardons was I'M
doubted, it was necessary to conclude that
the makers of the Constitution in
tended that the pardoning power of
the President should be as broad.
Mr.. Justice Mclean dissented from this
opinion and held that, as the President was
nowhere given power to pronounce sem
tence upon mai, it was power that
could no. be inferred, and that, therefore,
the condition Of the pardon was void, the
pardon absolute, and the man should be
discharged. Two other members of the
court denied their jurisdiction of the case.
There is little doubt that the present court
would sustain the opinion referred to, but
the decision of the court would be an in
teresting one to all lawyers.
The case of O'Brien, it is proper to say,
has never been in the hands of the Attor-
ney General, and the communication was
the sole act of the President. The case of
Barney Woods, convicted last summer of
murder in the first degree, for shooting
Cheeseman, bis employer, was a much
milder one than tbs of O'Brieu, and the
strongest efforts were made to secure
Communication Of bis sentence, but the At
torney General in a vigorous letter decided
not to interfere in the course of justice,
and Wood was executed.