New-York tribune., 1891-12-26
GOV. HILLS USCRPATION.
WEIGH WAS PARDoYED ILLEGALLY.
Ex-JUDGE NOAH DAVIS REVIEWS THE oAsE-A
FLAGRANr VIOLATION OF THE LAW

ExJUDGE NOAH DAVIS REVIEWS THE CAsE-A
FLAGRANr VIOLATION OF THE LAW.
TO the Editor of The Tribune
sir' have read the admirable letter of Governor
Cornell, On the abuse Of power by Governor Hill in
paruonng supervisor Welch. who was committed by
the supreme Court for contempt ain wilful dis
ooedence OF its mandsteD and concur in the view Of
UoVerhor Cornell that this act Of Governor Hill is
excess OF his constitutional powers Contempts
are now clearly defined by statute Code of Civil Pro-
cedure, Sections to IL. incusve and their modes OF
punishment are distinctly pointed out Section = SAYS:
court of record has power to punish for a criminal
contempt person guilty Of either of the following
acts and no Others: . wilful disobedicnce
to its lawful mandate
OF this contempt Welch guilty and the court
only adjudged TO him the penalty prescribed by law
for the contempt Of Its authority This was and is
simple proceeding known throughout the courts of this
country and In England and essential 10 the mainten-
ance OF their dignity and power and which, though now
greatly restricted by statute, is still kept in fun vgor
70 the extent allowed and defined The distinction be-
tween contempt Of the court which IL may summarily
punish to vlndicate and preserve its dignity and
authority, and the offence against the public for which
the guilty party may be indicted. tried and con
victed, is still maintained ana respected.
Wherefore, Section 13 of the code provides as fol-
lows Punishment for contempt as prescribed in
this article does bar an indictment for the same
offence but when person who has been so punished is
convicted on such an indictment, the court in SEN
fencing him must take into consideration the previous
punishment These two distinct proceedings have ex
sted side by side for period long pior to our present
State Constitution, and stn exist now by force OF
statute though formerly by the established usages OF
the common law. The former proceeding is not for
conviction OF crime or miSdemeanor but summary
proceeding in vindcaton Of the outraged dignity of
court OF Justice the latter Is proceeding by indlct
ment duly found by grand jury upon trial thereof
by court and jury and conviction by verdict of Jury
and Judgment by the court
If the proceeding by court for the punishment
summarilly for contempt be a trial and conviction
for public crme then, under the Constitution there
could be no Indictment trial and conviction afterwaM
for the public offence, because the Constitution Sec
ton Of Article l, provides that "No person shall
be subject 10 be twice put in jeopardy for the same
offence" This provision would render the statute
that provides that the proceeding and punishment for
contempt by the court does not bar an indictment
for the same offence" wholly nugatory.
But the good sense Of the trainers Of the Constitu-
ton not embarrassed between conviction for
public crime and the proceeding Of court TO
summarily Tndicate its dignity by Furnishing tho
contemnor of it's lawful authority. If courts had not
such powers their usefulness in these days would
be destroyed they in danger Of being by their
internecne strifes.
position to justly consider the extent of the pardoning
power which the Constitution confers upon
the Governor. IL is all contained In Section
of Article and is in these words: "The Governor
shall have power to grant Tepneves, combinations
and pardonS after conviction for all offences except
treason and cases of impeachment. upon such con-
dition, and with such restrictions and limitations
he may think proper, subject to such regulations
may be provided by law relative to the manner Of
applying for pardons. lie shall annually
communicate to the Legislature each Of repeve,
communication pardon granted, stating the name Of
the convict, the crime OF which he was convicted
the sentence and its date and the date of the COM
mutation pardon or reprieve."
Plainly the sole power granted by this section is to
repreve, commute or pardon after conviction. Tho
provision is both grant aud limitation, and when
first adopted in this form ii intended lmitar
tion on executive, and formerly hngly, power. The
phrase CATER conviction" 4" was added for most
significant purpose and to prevent appalling abuses in
shielding great criminals from trial that stain the
history Of the mother country. The words after con-
victOn" can have but one Just Hgnifcation,
and that is, after the convict shall upon trial in due
form Of law, have been found guilty Of the crime or
offence charged by presentment indictment OF a
grand Jury the trial he in the courts Of record, or
in the lawful forms II In the inferior courts. (See
Section OF Article Of the Constitution)
There must be conviction by verdict other
proper form of guilt Of the crime or offence. Judg
ment is not material for the Governor may interfere
with his pardon either before after judgment But
conviction" of the kind meant by the section must
have taken place To hold that this pardOnng power
Of the Governor applies TO subject to him the power
and proceedings OF the courts of the State In cases of
contempt OF such courts and their process is too
monstrous TO be conceded. II that be so, then the
highest courts Of State, which rightly regarded
as the sheet anchors Of our liberties our personal
rights and properties are at the mercy OF an un-
scrupulous, tyranncal ambitious Governor who may
take into his own hands the regulation and returns OF
our elections and order his tools and parisans to dis
regard the decisions and processes Of courts whose
punishments for contempts he viii pardon and whose
contemnors he will reward.
Analogous outrages upon people OF another land
caused our Constitution makers to limit the power Of
pardon as 1t now appears in the Constitution, but their
abors are If the present assault upon the courts
ca.. be upheld. NOAH DAVIS.
Work, Dec. o5, 1891.