The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-12-30
The Right to Refuse a Pardon.

n Right to Refuse a Pardon.
We have received from a leading mem
Der of the Richmond County Bar a COM
munication in which he asks the follow
ing questions: /. IL not the Communication
of the sentence in the Patrick case an
act of Executive clemency and therefore
pro tdnto a pardon? >, If so, is it not
still the law that n pardon must be ac-
cepted by the convict before it becomes
effective? 8. And if this is still the law,
and it is true that PATRICK refuses to
accept the pardon or Communication, is he
not still under sentence Of death, and is
it not the duty of the proper officers to
see that the sentence of the court Is car
ried out?
The exercise of Executive clemency in
this State is provided for by Section S
of Article ". of the Constitution, which
reads as follows: The Governor shall
have the power TO grant reprieves, COM
mutations and pardons after conviction
for all offences except treason and cases
of impeachment, upon such conditions
and with such restrictions and limita-
tions Is he may think proper, subject to
such regulations as may be provided by
NV relative to the manner Of applying
for pardOns."
1t rs undoubtedly n general rule Of law
in this country that acceptance by the
person sought to be pardoned is essen
tial to render a pardon effective. This
rule was laid down in the Federal courts
rs long ago as the time Of Chief Justice
MARSHALL, and has been followed by
the courts Of last resort in many of the
States of the Union.
There is a difference, however, Le-
tween a pardon and a Communication,
which has frequently been recognized
and which has been regarded as taking
a Communication out of the operation of
the rule. In a leading case on this sub
ject decided by the Supreme Court of
Appeals Of Virginia in 1872 it was said:
Itis 10 be borne IN mind that there Is a material
distinction between a conditional pardon and a
mere Communication Of punishment. A conditional
pardon Ia a grant to the validity OF which accept
snoe is essential. II may DO rejected by tho con-
vict. and II rejected there is no power TO force It
upon him. A commutation Is a substitution Of a
less for a greater punishment by authority of law.
and may be imposed upon the convict without his
acceptance and against his consent"
This view of the law was approved,
although the question was not expressly
decided, by the Supreme Court of Ohio
In 1877, where a legislative act empower
ing the Governor to commute sentences
in certain cases was under consideration.
There the court said:
"A Communication is not 8 conditional pardon: nor
10 10 simply the substitution of one punishment for
another. In It's legal acceptation It IS a change of
punishment from a higher to a lower degree In thu
SOLE Of crimes and penalties fixed by the law, and
10 presumed therefore to be beneficial TO tho con-
vict. Tho Legislature has plenary power
70 prescribe the punishment Of crimes and offences
and can exercise that power without consulting tho
offender"
But whatever may be the law In other
jurisdictions, it is perfectly clear that
acceptance by the convict is not essen
tial to the validity or effectiveness of a
Communication Of the death penalty In the
State OF New York.
To allow a person sentenced to death
to decline the benefit of a Communication
would be TO allow him to commit suicide.
At common law suicide was considered
crime against the laws of GOD and man.
As q punishment the goods and chattels
OF the person who had taken his W life
were forfeited TO the King and his body
was subjected to an ignominlous burial
in the highway. He was regarded as a
felonious destroyer Of his W life, as
was indicated by the Latin term "jeIo
de Sc One who took his own life was
thus deemed a murderer, and an attempt
to commit suicide was punishable at
common law in England as a INSIDE
meanor.
In this State our Penal Code declares
that suicide is deemed a grave public
wrong, yet from the impossibility of
reaching the successful perpetrator no
forfeiture is imposed" An attempt at
suicide, however, is a felony punishable
by imprisonment in a State prison not
exceeding two years, or by a fine not
exceeding $1,000, or both; and a person
who wilfully in any advises, en-
courages, abets or assists any person in
taking the latter's life is guilty of man
slaughter in the first degree"
These statutory provisions make it
clear beyoDl all doubt that the refusal
Ito accept the Communication Of a death
sentence, il treated as effective, would
involve the commission Of a new crime,
not only upon the part OF the convict,
who would thus attempt to commit
suicide, but also on the part Of the officers
OF the law who should attempt to carry
out the sentence of death; for they would
be guilty Of aiding and abetting the
offender. The certainty Of such q result