New-York tribune., 1892-01-07
EX-GOV. HILLS PARDON,
AN INQUIRY INTO HIS EXERCISE OF THE
POWER IN A RECENT CASE.
CONSIDERATIONS THAT SHOW HIS ACT TO BE
DECISIONS OF THE COURTS.

DECISIONS OF THE COURTS.
TO the Editor Of The Tribune.
Sir re Governor OF the state of New York. n few
days b. .orc the close Of his term issued a document.
in form of pardon purporiing to relieve a citizen
from the SANCTION attendant upon contempt Of the
supreme Court Of this state under which he then
confined within county jail Ii operated as a shock
to the minds Of many laymen, and probably NEST
lawyers. II appears that by the Constitution OF this
state. Article 4, We have Governor. section Of
that article delmits his power In relation to parOns.
1t extends to all offences except treason and i'm
peachment.' but such power only be exercised
after conviction" ard he must annually communi-
cate TO the Legislature each case of pardon granted.
stating the name Of the convict, the crime OF which
he convicted the sentence and It's date, and the
date OF the pardon" Also. tile exercise of the power
IS subject TO such regulations may be provided
by law relative TO the manner Of applying for
pariOns."
The regulations provided by law relative n the
manner Of applying for parons arc found In Section
81 Title l. Chapter {, Part OF the Revised Statutes
Of this State. and in Chapter 80 OF the laws Of 1919,
and to the effect First that tho Governor shall keep
book in his office in which shall be entered all
applications made to him for parions "with list Of
the official signatures and recommendations In favor
Of such pardon: further that when application Is made
to him for a pardon he require the Distrct-Attor
ncy Of tho convctng county To furnish statement OF
the proved the trial with any other facts
which the question of granting refusing the
pardon. Also before any application FOR pardon Is
presented to the Governor. IL Is provided that written
notice thereof be served upon the District Attorney
OF the convictng county ard proof Of such service
must he presented to the Governor before he can art
Notice OF the application for the pardon (ness the
Governor the interests Of Justice dspcnses with III
must be published in one newspapers for four
weeks.
In the case under consideration It appears that the
time elapsng between the committal 10 jail BY the
justice and the arrival at the Jail with the pardon OF
the special messenger Of the Governor was something
less than twelve hours and may fairly assume that
no application was made 10 the Governor for par'on
In this case unless to accept the violent as
sumption that the Chief Executive Of the state OF New
York violated the law. Certainly no snch dcthie1
method as has been above rccitcd followed. and
therefore must assume that the Governor acted OF
his own vction and without any application being made
to him. IIis sense OF justice may have been stirred
by private telegram informing him OF tho fact OF the
commitment for instance. Assuming then mat III"
Governor acted Of his vcton and in no disregard
nf the provision of the Revised Statutes. ana assuming
ALWAYS for the sake argument that this comnittal
10 Jail fcr n contempt was conviction of crime
We find that I'm assisting Chief Executive To avoid
Charyhdls we have stccrcd his bark upon scyla, for
We started out with the assnmpton-fNunded On Inc
express provision ~ the ConSttutlon-that any action
of his I'm granting pardon expressly snbcrt to the
regulations provided By law relative to the manner oi
applying therefor
of course II Is pcssblc that notice NJ an applcno"
Tor The p,rton was served upon tho District Attorney
the county: that proof of such notice was presented
with the application TO the Governor that he Hiicn
that Justice required dispensing with puhhcaoh "i
notice of the application that he decided It unnecessary
~ call on the District Attorney to furnish the facs Cf
the case cc. AIsc II Is possible that oil the original
papcrs in tho "a o. including whatever of Official sigma
turcs and recommendations in favor ~ the application
,hcra were do now remain on file In Tie fA''u''Ne
Chamber but II nll this bc greater pronp'hess u
ordinarily rules prevailed II is also useful I" 'onNn'r
these methods Of application required bv law Sh'e
from their nature gather grounds for an understand
ing Of tho sense in which tho word offence Is used In
thc Constitution. II appears clearly that the
"offcuces7 referred to in nature criminal
not "civl"; for there must be "cohV"'loh
A convict "crme,' and sentence
Also the term Offence" IL hy the provisions of
the Revised statutes above cited incidentally construed
20 he snch an infraction Of the law brings into ""r
alton or has some relation TO district attorney, "a
trial OF A case aud a convlcug county
II We INQUIRE further into the elements which ron
.tituto within this state what Is known as crime
or offence" find that certain general consequences
now from crimes and offences "a Nuch ana that III All
their attributes they criminal and not civil III 'har
acer II appcars further that the very term employed
I'm the Constitution has been defined by statute In
Sct,on ~ Of Title = Chapter l. Part Of The Revised
statutes If /, provided that the terms crime or
Offence when used In any statute o' the state "sha
be construed to mean any offence for when any orim
inal pnnls shmcnt may by law be inflicted The inquiry
then comes down 10 the question whether " lnpri'on
ment7 is necessarily the inGction Of criminal punish
ment.
To take an Illustrative example; Suppose man
confined I'm ja under a warrant Of arrest In an action
fpr the recovery Of money received by him A. an agent
in A nucary capacity which he has failed to pay over
IN his pnncpal. Here would he crime. no c"nvlc
ton no convict no dlsrctattorney and no ease tiicd
and vet the man would bc imprisoned. Clearly IN"
Governor, pardon would be waste paper in such case
GO one step fmrthcr: Suppo-c the anc man cohhncd
I'm thc same ial no longer under the provisional rcclN
OF warrant of arrest but the acton having hcrh Drought
10 trial and the iuy having found ioT the p''"""
under an execution against his person Ihefc "ou''
then have been a tried and facts proved but inc"
r,u,d sim he wanting crime conviction aud dis,
trlct attorney Thi, also then, would not DC "h
offence 10 which the pardonns power Of the Chief TX
ecu,ive extended and his pardon would be ncfectna
II follows that "impr,onment' i not necessarily inc
,nalction Of a criminal punishment
Now contempt~" divided into two classes 'iVH
and criminal. Criminal concmpt' are msdeneahor'
thcy are enumerated in section l4' oil INC fehai '"c
o., this state aud cOn,i, o a contempt vi 'o"'' Va any
one az the following kinds
Behavior in the immediate view OF the conr'
directly tending interrupt IT. proceedings OF inP"''
tlc re,pcct due it, authority
. Like behavior In the presence OF referee ehsagc'
+, trial or i'm the presence Of Jury actually Sltllhg
for tbe trial Of case, or Of any other piO'ec"''r
authorized by law.
pre,ch of thc peace y disturbance tending 10 III
crrup, thc proceeding, Of a court jury o. referee
4 wutl dI,obedcncc to the lawful process or othci
mandate of court
D. Wiful resistance thereto
6. Unlawfuy refusing to be sworn a' "'''''s' Ut ~
answer a proper nterroeatory
: Publication Of a false report oi court P''
ccedngs.
These may be conceded to be crimes OF o'e"0''
within the meaning Of the Constitution anu n"r'
"' ,,. ,,aiction of a "criminal7 punish