In re Court of Pardons

• Decision Date: 31 January 1925
• Citation: 129 A. 624
• Parties: In re COURT OF PARDONS.
• Court: New Jersey Supreme Court

129 A. 624

In re COURT OF PARDONS.

Court of Pardons of New Jersey.

1925.

(Syllabus by the Court.)

In the matter of the creation, powers, and prerogatives of the Court of Pardons. Writ of request of Governor and other members of the Court.

WALKER, Ch. The following view of the creation, powers and prerogatives of the court of pardons of New Jersey, with historical, constitutional, statutory, and case law, relating thereto, has been written at the request of the Governor and other members of the court, in the hope and expectation that it may prove useful, not only to the court itself, but also to the bar, when questions may hereafter arise concerning the power and prerogatives of this tribunal of mercy:

The court of pardons is in no judicial sense a court, and is not called a court in the Constitution. It was first so named by an act of the Legislature approved January 18, 1853 (P. L. p. 4). See Cook v. Freeholders of Middlesex (Supreme Court, per Mr. Justice Vredenburgh) 26 N. J. Law, 326, at page 349. This ease very comprehensively deals with the pardoning power. There were two separate opinions in the Supreme Court, one by Chief Justice Green and the other by Mr. Justice Vredenburgh, and the opinion in the Court of Errors and Appeals was by Mr. Justice Elmer. 27 N. J. Law, 637. The case will, for the sake of brevity, be hereinafter cited as Cook v. Freeholders.

The present act, relative to the court of pardons (3 Comp. St. 1910, p. 3895, § 1), provides that the officers of this state, in whom the power to remit fines and forfeitures and to grant pardons is vested by the Constitution, shall be called the court of pardons. The name is quite appropriate, but, if it had not been bestowed by legislative fiat, the body vested with the pardoning power might be called the board of pardons, or by some other designation. It must, of course, have a name.

The Constitution of 1844 created and defines the powers of the court of pardons, as follows (article 5, par. 10):

"The Governor, or person administering the government, the chancellor, and the six judges of the Court of Errors and Appeals, or a major part of them, of whom the Governor, or person administering the government, shall be one, may remit fines and forfeitures and grant pardons, after conviction, in all cases except impeachment."

And the Constitution, in article 2, par. 1, granting the right of suffrage, provides that—

"No * * * person convicted of a crime which now excludes him from being a witness, unless pardoned or restored by law to the right of suffrage, shall enjoy the right of an elector."

As will hereafter appear, the provision concerning restoration to the right of suffrage is a prerogative of the court of pardons, although not so expressed in terms.

The crimes which at the time of the adoption of the Constitution of 1844 excluded the convict from being a witness, and, therefore excluded him from enjoying the right of an elector, were blasphemy, treason, murder, piracy, arson, rape, sodomy, polygamy, robbery, conspiracy, forgery, or larceny of above the value of $6, perjury or subornation of perjury, and conviction of any one of which still excludes the convict from enjoyment of the right of suffrage.

The pardoning power appears always to have been an attribute of sovereignty. In England, as is well known, the king is the fountain of mercy. The granting of the king's most gracious pardon is the most amiable prerogative of the crown. 4 Bl. Com. 396. A pardon may be conditional. The king may extend his mercy upon what terms he pleases. Id. 401. The effect of the pardon is to make the offender a new man. to acquit him of all forfeitures annexed to that offense for which he obtains his pardon, not so much to restore his former, as to give him a new, credit and capacity. Id. 402. If pleaded in bar before trial, it destroys the end and purpose of the indictment by remitting that punishment which the prosecution is calculated to inflict. Id. 337. After indictment, it could be pleaded in bar of the prosecution or in arrest of judgment before sentence passed. Id. But in our state a pardon cannot be granted before conviction.

Now, doubtless, the reason that our Constitution made provision that a pardon or remission of penalties could be granted only after conviction, was to prevent the arbitrary favor of warding off the prosecution in any ease, as incompatible with the genius of our institutions.

In this state and country the pardoning power is, and always has been, a prerogative of the executive department. In this state it is expressly bestowed in article 5 of the Constitution relating to the executive department. And article 3, par. 1, declares that no person or persons belonging to or constituting that department shall exercise any of the powers belonging to either of the others. Cook v. Freeholders (Supreme Court) 26 N. J. Law, 326, at page 338, per Vredenburgh, J. And it also provides that no person or persons belonging to or constituting either of the other departments shall exercise any of the powers properly belonging to it. In Clifford v. Heller, 63 N. J. Law, 105, at page 113, 42 A. 155, 57 L. R. A. 312, the Supreme Court said that the powers of government were wisely distributed by the Constitution of 1844, in which a member of one department cannot exercise the powers belonging to either of the others (except in the instances where the office of Governor becomes vacant, the president of the Senate, and after him the speaker of the House of Assembly, succeed to the administration of the government and the power to reprieve convicts).

The power of pardoning, as lodged in our federal and state executives, holds the same position in our framework of government as the royal prerogative of pardon does in the English, but limited and diluted by a jealousy of that prerogative. Our court of pardons represents, not the parliament, but the king and his privy counsel. Cook v. Freeholders (Supreme Court, per Justice Vredenburgh) 26 N. J. Law, 340. Ergo, it is a kingly, and not a parliamentary, power—that is, one vested in the executive and not in the Legislature. I confess that, after a somewhat extended research, I am unable to find any learning in the books to the effect that the privy council shared in the prerogative of mercy or were ever consulted by the king with reference to the propriety of a pardon. It may be, however, that the king occasionally asked the advice of the council in these matters. The duty, says Blackstone, of a privy councilor, appears from the oath which he took, consisting of seven articles, one of which was to advise the king according to the best of his cunning and discretion. 1 Bl. Com. 230. It may be that in the exercise of this power the council, on the request of the king, sometimes advised him respecting a pardon, but I have been unable to find any reported instance of it, and it would seem that the exercise of the prerogative of mercy was exclusively the king's own, for Blackstone, speaking of it, says:

"And it is declared in parliament by statute (27 Hen. VIII, c. 24), that no other person hath power to pardon or remit any treason or felonies whatsoever; but that the king hath the whole and sole power thereof united and knit to the imperial crown of this realm." 4 Bl. Com. 397.

It is significant that Blackstone makes no mention of the privy council in connection with the prerogative of pardon.

In Ex parte Garland, 4 Wall. 380, 18 L. Ed. 366, the Supreme Court of the United States, dealing with the pardoning power vested in the President by the federal Constitution, said (18 L. Ed. at page 371), that the benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. And in Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917 E, 178, Ann. Cas. 1917 B, 355, the same court held that the Constitution assigns to the Legislature the power to enact laws defining crimes and fixing the degree and method of punishment; to the judiciary, the power to try offenses under those laws and impose punishment within the limits and according to the methods therein provided; to the executive, the power to relieve from the punishment so fixed by law and so judicially ascertained and imposed. And again (at page 42 ) that the right to relieve from punishment belongs to the executive department.

Some question has been made as to whether the constitutional provision creating the court of pardons requires a majority of the members of the court, including the Governor, or person administering the government, to act affirmatively upon an application for clemency; it being suggested that maybe a majority of a quorum acting in the affirmative, the executive being one, could exercise the power of the court. But, as to this, I think there is no difficulty.

In Clifford v. Heller, supra, 63 N. J. Law, 105, at page 117, 42 A. 155, 159 (57 L. R. A. 312), Mr. Justice Van Syckel, writing the opinion of the Supreme Court, said:

"By the Constitution of 1844, the executive, with the concurrence of the chancellor and of the six judges of the Court of Appeals, or a major part of them, may grant pardons after conviction." (Article 5, par. 10.)

To the same effect are the remarks of Chief Justice Green in Cook v. Freeholders, supra (Supreme Court) 26 N. J. Law, 326, at page 327; also those of Mr. Justice Elmer (Court of Errors and Appeals) Id., 27 N. J. Law, 637 at page 639. Although it is not a point expressly decided, but only observed upon, it is apparent that the judges were of opinion that a decision could only be made by the votes of a majority of the members of the court in favor of clemency, including the Governor, or person administering the government, and this precludes the notion that clemency can be extended by the votes of a majority only of a quorum of the judges of the court, even with the concurrence of the executive.

The power of granting pardons includes the power...