Lee v. Murphy

• Decision Date: 04 December 1872
• Citation: Lee v. Murphy, 63 Va. 789 (1872)
• Parties: LEE, sergeant, v. MURPHY.
• Court: Virginia Supreme Court

63 Va. 789

LEE, sergeant, v. MURPHY.

Supreme Court of Appeals of Virginia.

December 4, 1872

Absent, CHRISTIAN, J.

1. The Governor of Virginia has authority under the constitution, to grant a conditional pardon to a prisoner convicted of a felony.

2. The condition annexed to a pardon must not be impossible, immoral or illegal, but it may with the consent of the prisoner be any punishment recognized by statute, or by the common law as enforced in this State.

3. Though the warrant of the Governor speaks as commuting the punishment, yet as it substitutes a less for a greater punishment, and is intended to be done, and is done, with the consent of the prisoner, it will be considered a pardon, and not a commutation of the punishment.

In April 1872, Lawrence Murphy was tried and convicted of a felony in the Hustings court of the city of Richmond, and was sentenced to be imprisoned in the penitentiary for three years. He thereupon applied to the Governor for relief; and Governor Walker issued the following warrant:

Virginia--to wit:

It appearing to the executive that Lawrence Murphy, now confined in the city jail of Richmond, awaiting removal to the penitentiary under sentence of the Hustings court of said city, for unlawful shooting, is a fit subject for cummutation of sentence:

Therefore I, Gilbert C. Walker, Governor of the Commonwealth of Virginia, have in pursuance of authority vested in the executive by law, thought proper to commute, and do hereby commute the punishment of the said Lawrence Murphy, from imprisonment in the penitentiary for the term of three years into imprisonment in the city jail of Richmond for the term of twelve months from the date hereof.

Given under my hand as Governor, and under the lesser seal of the Commonwealth, this 18th day of May A. D. 1872.

By the Governor G. C. WALKER.

JAMES MCDONALD,

Secretary of the Commonwealth.

On this paper was the following endorsement by Murphy:

I, Lawrence Murphy, hereby accept the within commutation of my sentence as therein expressed, with the condition set forth.

LAWRENCE MURPHY.

May 18th, 1872.

On the 8th of June, Murphy presented his petition to the judge of the Hustings court of the city of Richmond, complaining that he was illegally detained in the city jail, in the custody of N. M. Lee, the city sergeant, and jailor; and praying for a writ of habeas corpus. The writ was issued; and N. M. Lee, the sergeant of the city, brought in the prisoner, and returned that he held him by virtue of the sentence aforesaid, and the direction of the judge of the court to await the application of the prisoner to the Governor for a pardon; and such application having failed, he was directed by the judge of said court, to convey the said Lawrence Murphy to the penitentiary.

The case was heard on the 14th of June 1872, when the prisoner introduced the warrant of the Governor, with the written acceptance of the prisoner endorsed thereon; and the Commonwealth introduced the judgment and sentence of the Hustings court; and thereupon the court discharged the prisoner from custody. To this opinion and judgment Lee, sergeant, excepted: and stating to the court that he intended to apply for a writ of error to the judgment, it was ordered that the same be suspended until the 25th of July; and on the application of the prisoner, he was admitted to bail. The writ of error was awarded by a judge of this court.

The Attorney-General, for the appellant.

Cabell & Meredith, for the appellee.

STAPLES J.

The record in this case presents for our consideration two important and interesting questions. First, has the Governor of the State the constitutional power to grant conditional pardons; and second, is the paper which emanated from the Executive Department on the 18th of May 1872, and is filed as an exhibit in this cause, to be considered a conditional pardon, or a mere commutation of punishment. It is laid down in Blackstone Com., vol. 4, p. 401, that a pardon may be conditional--that is, the King may extend his mercy upon what terms he pleases, and may annex to his bounty a condition precedent or subsequent, on the performance whereof the validity of the pardon will depend: and this by the common law. All the writers on criminal law concur in this doctrine; and the English books are full of authorities in support of it. 1 Chitty's Crim. Law, 714; 2 Hawkins P. C., Pardon; 1 Leach Crim. Law, 223, 393; In the matter of Parker & als., 5 Mees. & Welsb. R. 32.

This power has been exercised by the King of England from time immemorial, not as a part of his royal prerogative, but as an incident to the general pardoning power. The King may annex a condition to his bounty, not because he is king and clothed with royal attributes, but because being invested with the general power of pardoning, he has the right to prescribe the terms and limitations under which he will exercise it. To " grant conditional pardons," then, simply implies a contract between the sovereign power and the criminal, that the former will release the criminal upon certain conditions imposed by the sovereign and accepted by the criminal. It is not an inference from the general power of pardon, but appertains to it and is a part of it.

These are the doctrines and maxims of the common law. They were familiar to the jurists and statesmen of Virginia at the time of the adoption of our first constitution. In the language of Chief Justice Marshall, " As the power has been exercised from time immemorial by the executive of that nation, whose language is our language, and to whose judicial institutions ours bears a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look to their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. United States v. Nelson, 7 Peters U. S. R. 150.

The constitution of 1776 declares that the Governor shall, with the advice of the council of State, have the power of granting reprieves or pardons, except where the prosecution shall have been carried on by the House of Delegates, or the law shall otherwise particularly direct. And this power is conferred in language almost identical in all the amended constitutions, except that it can now only be exercised after conviction. The same terms are used substantially in the constitutions of nearly all the States, and in the constitution of the United States. For example, the constitution of Pennsylvania, both of 1790 and 1838, provides that the Governor shall have power to remit fines and forfeitures, and grant reprieves and pardons. Under this provision, it was unanimously decided by the Supreme court of that State, that " the Governor may annex to a pardon any condition, whether precedent or subsequent, not forbidden by law; and it lies on the grantee to perform it: and if the condition is not performed, the original sentence remains in full force, and may be carried into effect."

The Supreme court of Massachusetts, in construing a similar clause in the constitution of that State, used this language: " The power of pardoning offences is conferred on the executive by the eighth article of the second chapter of the constitution. It is general and extends to all cases, except convictions by the Senate on impeachment. This exception proves the comprehensive nature of the power. The only limitation to its exercise is that pardon shall not be granted before conviction. The general power necessarily contains in it the lesser power of remission and commutation. If the whole offence may be pardoned, a fortiori, a part of the punishment may be remitted, or the sentence commuted. If an absolute pardon may be granted, of course a conditional one may be. " Perkins v. Stephens, 24 Pick. R. 278.

In the People v. Potter, 1 Parker's Crim. Rep. 47, 53, Judge Edmonds of the Supreme court of New York, in commenting upon the words " shall have power to grant reprieves and pardons," declares, " The decisions of the courts in our State, in several of the States of the Union, in the courts of the United States and in the courts of the British Empire, have all regarded these words as conveying the right to attach conditions to the grant of a pardon." The courts of South Carolina, of Arkansas, New Jersey and Maryland, have construed like clauses in the constitutions of those States in the same way. If there are any contrary decisions, they have escaped my attention. It is true, that under the constitution and laws of several of these States, express power is given to the executive to grant pardons upon such terms as he may think proper; but the courts there hold that the power in question is conferred by the general words, and exists independently of these enactments. Mr. Wirt, while Attorney-General of the United States, expressed the opinion, that the power of pardoning absolutely includes the power of pardoning conditionally; on the principle that the greater power includes the less. Opinions of Attorney-General, 250.

These doctrines have received the unqualified assent of the most approved writers on criminal law in the United States. The rule is thus expressed in Bishop on Crim. Law, vol. 1, sec. 760: A pardon may be full or partial, absolute or conditional. In some of the States this is so by the express words of the constitution; and where the words are not express, the same result flows from the doctrine that with us a power general in its terms takes the construction given it in the English common law, whence our law is derived.

This citation of authorities would be incomplete without some notice of the case of ex parte Wm. Wells, 18 How. U S. R. 307; a well considered decision of the Supreme court of the United...