The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-08-07

provides, in direct terms, that The
granting, Withholding, forfeiting and
restoring of the communication provided
by this act shall be discretionary with
the board of prison inspectors. AS to
prisoners confined in the prisons OF
the republic other rhan Oahu prison,
the board of prison inspectors may
delegate TO such prison officers or other
persons as they deem best the power
to grant. withho old. forfeit and restore
Communication of prisoners confined In
such prisons, and such power to re-
woke at their discretion"
1t thus results that we have here no
fixed rule of credit within any prop
er sense of that phrase. If, Ion con-
sultation with the jailor' (section 1881.
Civil Laws, 1897, that off1c1aI should
recommend to the board two convictS
for communication yet, although the
conditions may be quite similar, the
board may deny to the one the re-
mission of sentence which it grants to
the other. Such a discretionary exer-
Fcise of clemency cannot, in my opinion.
be regarded as a rule of credit with
in the meaning of section 5544 of the
Revised Statutes.
Even if the system of Communication
created by chapters 80 and rs of the
+, local Civil Laws We're within the pur-
view of section 554i of the Revised
Statutes, one should be disposed to
question its constitutionality; for il is
not perceived upon what principle it is
competent for Congress either itself to
trespass by legislative enactment, up
on the power of the President under
article II, section >, paragraph l, or the
constitution, Ito grant reprieVeS and
pardons for offenses against the Unit
ed States or to delegate d power,
which in no substantial respect differs
:
State legislature, or to a minor Terri
torial board. Upon principle and au-
! thority, q Communication is, in effect,
the exercise of the pardOning power;
it is species of pardon; any commu
tation which is independent of the ac-
ton of the executive, would be an I'M
due trespass upon his high prerogative
of executive clemency; and the power
of the legislative department of the
government thus to affect the action
of the judicial department. (by the al
teratiOn of sentences), or the preroga-
tive of the executive, has been repeat
eddy denied (Com. VS.. Holloway, ~ Pa.
St, 442; Diehl VS.. Rodgers, 1863 Id, 31s;
In re Victor, 81 Ohio St. 206; Lee VS..
Murphy, - Graft, 1893; Haley VS.. Clark
&c Ala, 439 People VS.. Moore, 60 Mich.
496: State VS.. Sloss, % Mo, 291: Ten
nessee VS.. Fleming, / Humphrey, 1922.
If a statute be susceptible of two
constructions, that should be preferred
which preserves the constitutionality
of the act; and within this wel-settled
rule of construction, | prefer so to
construe r. S. 5544 as to exclude from
it's purview any system for the re-
mission of sentences which is depend
ent upon the pleasure of subordinate
board. To hold the contrary would be.
in effect, to concede that Congress
could delegate the pardoning power in
the matter of federal prisoners to a
subordinate 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 committed by
a subordinate board of the Territory
in which he is imprisoned; and yet, in
the last analysis, this is precisely
what l gathered from your remarks
the other day. But it is not necessary
to impute such an intention to Con-
gress; and in the absence of judicial
construction, it is safer to conclude
that Congress had in mind a system of
Communication which. proceeding upon
fixed standards and wholly independ-
ent of the unregulated discretion of
any board. could properly be called a
rule of credit"
76 of the Civil Laws, or the wisdom
of their provisions. or the propriety
of providing for Territorial prisoners
n system of Communication which is dis
cretionary in its nature. l have moth
ing to do: but l am of the opinion that
the system of Communication established
by chapters 10 and 76 OF the Civil
Laws of 1897 does not constitute
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 applicable
to United States prisoners under sec
ton 5544 of the Revised Statutes. The