2. Every pardon granted to the guilty is in derogation of the law; if
the pardon be equitable, the law is, bad; for where legislation and the
administration of the law are perfect, pardons must be a violation of
the law, But as human actions are necessarily imperfect, the pardoning
power must be vested somewhere in order to prevent injustice, when it is
ascertained that an error has been committed.
3. The subject will be considered with regard, 1. To the kinds of
pardons. 2. By whom they are to be granted. 3. For what offences. 4. How
to be taken advantage of 5. Their effect.
4. - §1, Pardons are general or special. 1. The former are express, when
an act ofthe legislature is passed expressly directing that offences of
a certain class; shall be pardoned, as in the case of an act of
amnesty. See Amnesty. A general pardon is implied by the repeal of a
penal statute, because, unless otherwise provided by law, an offence
against such statute while it was in force cannot be punished, and the
offender goes free. 2 Overt. 423. 2. Special pardons are those which are
granted by the pardoning power for particular cases.
5. Pardons are also divided into absolute and conditional. The former
are those which free the criminal without any condition whatever; the.
fatter are those to which a condition is annexed, which must be
performed before the pardon can have any effect. Bac. Ab. Pardon, E; 2
Caines, R. 57; 1 Bailey, 283; 2 Bailey 516. But see 4 Call, R. 85.
6. - §2. The constitution of the United States gives to the, president
in general terms, "the power to grant reprieves and pardons for offences
against the United States." The same power is given generally to the
governors of the several states to grant pardons for crimes committed
against their respective states, but in some of them the consent of the
legislature or one of its branches is required.
7. - §3. Except in the case of impeachment, for which a pardon cannot be
granted, the pardoning power may grant a pardon of all offences against
the government, and for any sentence or judgment. But such a pardon
does not operate to discharge the interest which third persons may have
acquired in the judgment; as, where a penalty was incurred in violation
of the embargo laws, and the custom house officers became entitled to
one-half of the penalty, the pardon did not discharge that. 4 Wash. C. C
R. 64. See 2 Bay, 565; 2 Whart. 440; 7 J. J. Marsh. 131.
8. - §4. When the pardon is general, either by an act of amnesty, or by
the repeal of a penal law, it is not necessary to plead it, because the
court is bound, ex officio, to take notice of it. And the criminal
cannot even waive such pardon, because by his admittance, no one can
give the court power to punish him, when it judicially appears there is
no law to do it. But when the pardon is special, to avail the criminal
it must judicially appear that it has been accepted, and for this reason
it must be specially pleaded. 7 Pet. R. 150, 162.
9. - §5. The effect of a pardon is to protect from punishment the
criminal for the offence pardoned, but for no other. 1 Porter, 475. It
seems that the pardon of an assault and battery, which afterwards
becomes murder by the death of the person beaten, would not operate as a
pardon of the murder. 12 Pick. 496. In general, the effect of a full
pardon is to restore the convict to all his rights. But to this there
are some exceptions: 1st. When the criminal has been guilty of perjury, a
pardon will not qualify him to be a witnessat any time afterwards. 2d.
When one was convicted of an offence by which he became civilly dead, a
pardon did not affect or annul the second marriage of his wife, nor the
sale of his property by persons appointed to administer on his estate,
nor divest his heirs of the interest acquired in his estate in
consequence of his civil death. 10 Johns. R. 232, 483.
10. - §6. All contracts, made for the buying or procuring a pardon for a
convict, are void. And such contracts will be declared null by a court
of equity, on the ground that they are opposed to public policy. 4 Bouv.
Inst. n. 3857. Vide, generally, Bac. Ab. h. t.; Com. Dig. h. t.; Nels.
Ab. h. t.; Vin. Ab. h. t.; 13 Petersd. Ab. h. t.; Dane's Ab. h. t.; 3
lust. 233 to 240; Hawk. b. 2, c. 37; 1 Chit. Cr. L. 762 to 778; 2 Russ.
on Cr. 595 Arch. Cr. Pl. 92; Stark. Cr. Pl. 368, 380.
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