The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-08-07

erected By Chapters = ana IS of tie /
Ioea5 cIvEf F.zws ~ere wfthEn the psr-
F5ew % SeeHcn s544 q the Revised
ssz.zfes. one shozia b disposed q
eusstica is constitutions ftF fcr Il
s nos perceived upon What principle
Il Is competent for Congress either Il
self 70 tFespass. hv legislative enzct-
menr upon the power Of TIE President
under Article Il. Section 2. Paragraph /
i. OF the Constitution 10 grant re-
prieves ard pardons for Offences
against the United States. OF 70 dele
gate 3 power. which in no substantial
respect differs from that OF executive
eIemency. 70 a State legislature. or TO
minor Territorial Board. Upon prin-
ciple and authority. Communication Is.
in effect the exercise Of the paracnIng
power. il Is 4 species Of pardon; any
communication which IS independent OF
the action OF the executive. would be
an undue srespass upon his high pre-
rogztive OF executive clemsncy: and
the power Of the legislative depart
meat OF the government thus TO affect
the action Of the judicial department
by the alteration OF senteneesl or the
prerogative OF the executive. has been
repeatedly denied CCom- vs. Hallovay.
~ Pa St. AZ: Dichl vs. Rodgers. 1ss
ID SIS: In re Victor. 81 Ohio St 20s:
Lee rs. Murphy. % Craft Tss: Haley
VS.. Clark. % Ala s39: People vs..
Moore. So Mich 1876; State rs. Sloss.
25 Mo pei: Tennessee vs.. Fleming.
Humphrey. 1927.
II a statute be susceptible of two
constructions. that should be preferred
which preserves the constitutionality
OF the Act: and within this welI-settIed
rule of construction, l prefer so TO con-
strue r S. 5544 as TO exclude from its
purview any system for the remission
OF sentences which is dependent upon
the pleasure OF a subordinate Board.
To hold the contrary would be. in eff
feet. to concede that Congress could
delegate the pardoning power in the
matter of Federal prisoners to a sub
ordinate Territorial Board No one
would pretend that Congress could
pass a law which would in effect pro-
vide that any United States prisoner
could have his sentence commuted by
subordinate Board OF the Territory
in which he is imprisoned; and yet. in
the last analysis. this is precisely what
| gathered from your remarks the 9th
err day. But it is not necessary to i'm
pute such an intention TO Congress:
and in the absence of judicial construc-
ton, it is safer TO conclude that Con
gress had in mind system of commu-
tation which, proceeding upon fixed
standards and wholly independent of
the unregulated discretion of any
Board. could properly be called a rule
Of credit
With the policy of Chapters IS and
76 of the Civil Laws. or the wisdom
IF their provisions. or the propriety of
providing for Territorial prisoners a
system of Communication which is dis
cretionary in its nature. | have moth
ing to do; but am of the opinion that
the system of Communication establish
ed by Chapters IS and rs of the Civil
Laws of 1897. does not constitute a
rule of credit" within the meaning
Of r. S. 5544 From this it results that
there is no system of Communication I'M
der the Territorial laws now apple
able to United States prisoners under
Section 5544 of the Revised Statutes.
The Communication provided by Con-
gress in the Act of March 3rd. 1875 Il
Supp Rev. Stat so. therefore. be
comes applicable to such prisoners;
and the government viii recognize
such allowance when made in accor-
dance with the provisions of the Act
have the honor. therefore, to ad-
wise you. and through you the appro-
pirate officials of any penitentiary or
| prison within your jurisdiction. that
the Government OF the United States
cannot recognize any discharge of
United States prisoner by virtue of the
communication provided by Chapter IS
and rs of the Civil Laws of 1897.
Permit me to add that the opinions
herein expressed. and the reasons up
on which they are based. are founded
upon the views of the Attorney Gen.
eral of the United Staes expressed in
re Pennsylvania Communication Law. on
June It'll, 1901 l shall forward copy
Of this opinion to the warden of Oahu
Penitentiary.
| have the honor. sir. TO remain.
Your obedient servant
]. j. DUNE.
Acting United States Attorney