The sun. [volume] (New York [N.Y.]) 1833-1916, 1891-12-27
a Constitutional Controversy.

In the discussion which hns arisen con-
corning tho WEIGH pardon nothing has
boon published to lend us to doubt the cor
rectness Of tho opinion we expressed on the
day after tho pardon was granted, to the
effect that tho act Of Governor HILL was
clearly constitutional exercise OF power.
ALoSzo i. CORNELL. GEORGE N. KEN
NEEDY. and NOAH DAVIS. three persons Of
considerable prominence, have criticised the
pardon. Mr.. ConNELL's opinion Is that Of n
strong partisan unframed In the law: and
whatovor Importance 1t possesses Is duo to
tho fnct that It's author formerly held the
ofIlce OF Governor OF the State. Judge
KESSEpY's memorandum is production Of
exceedingly doubtful taste. to soy the least.
cou.ng rs It docs from tho magistrate
whose act wns expressly condemned by
tho Govo-nor In granting tho pardon. Even
II Judge KENNEDY were clearly right. 1t
would have been far more consistent with
judicial dignity to ROMAN silent rather
than publish TRADE against the Governor.
Tho letter which NOAH DAVIS contributed
to tho Ne,o York 1rib1s Of yesterday. Is
moro lawyer.like discussion concern
ing the power Of tho Governor to
grant pcrdOns in cases Of contempt.
Tho principal point which the writer makes
Is that tho adjudication declaring Super
visor WEIGH guilty OF contempt OF court
was not conviction within the meaning Of
tho State Constitution. which prescribes
that pardons can be granted only after
conviction. Although he is well known to
DO bitter partisan. the long experience Of
Judge DAVIS on the bench Of tho Supreme
Court Of this State may give his opinion
greater weight in some quarters than It
deserves. unless attention Is called to tho
fact that it seems to be in direct hostility to
the views entertained by two great Judges
Of the Supreme Court OF the United States.
OF which views he makes no mention.
In the KEARNEY cass decided by the Su-
promo Court Of the United States in 1922.
when JOSEPH STORY was on the bench. that
great lawyer. speaking for the court. used
this language: when o court commits q
party for a contempt their adjudication is a
conviction, and their commitment In conse-
Quence Ii execution"
In the case Of WILLIAM MuLLEE, which
came before Judge SAMUEL BLATCHFoRD.
now Of the Supreme Court at Washington.
sitting in tho Circuit Court Of the United
States in this city in 1869. that learned
jurist laid down the law to the same effect
as Judge STORY; and in the head note Of
the case as found in the seventh volume Of
BlATcHFoRD's Reports. prepared by the
Judge himself, the rule is stated in these
words: "a contempt Of this court is an Of
fence against the United States. an adjudi-
cation by the court that the contempt has
been committed is conviction. and COM
mitment thereon is execution"
It is Furthermore to be noted that even
Judge KENNEDY. in his memorandum con-
corning the WEIGH pardon. treats the ad-
Indication as conviction. lone WEIGH"
he says. "was convicted. after full hear
ing. OF q criminal contempt in wilfully DISC
beying o lawful mandate Of the court"
And in another place he speaks Of WEIGH
rs 1.-The convicted party" .-.
With the judicial authority OF STORY and
BLATcHFoRp to sustain the Governors
act, and the admission Of Judge KEN
NEDY himself that the decision against the
Onondaga Supervisor was q conviction.
there can hardly be any serious question in
the minds Of intelligent people as to the
Governors power to grant the pardon in
tina WEIGH case.