trict of Pennsylvania. A pardon had, however, been previously obtained from the President, by stress of which the witness was admitted, and the question whether by force of conviction he was rendered incompetent avoided. n In the United States circuit court for the Eastern District of Pennsylvania, April term, 1830, during the trial of Wilson and Poteet, for mail robbery, before Judges Baldwin and Hopkinson, Abraham Porter was called as a witness, and was objected to by the defence, on the ground of his conviction in the Baltimore city court of several offences, two of which were larcenies, of which the records were produced. The court, on the question being raised, doubted the admissibility of the witness, when Mr. Dallas, the district attorney, offered a pardon for the larcenies, on which, after argument, he was admitted. o But it is difficult to see how one state can enforce the penal laws either of another state or of a foreign country; and such, in fact, appears to have been held to be the law in the only two cases where the question was regularly mooted.p 2. Verdict without Judgment. § 763. Conviction without judgment works no disability. q Prisoners who have pleaded guilty, but on whom no sentence has been passed, are constantly admitted in practice as witnesses; and in one of these cases Baron Wood told the man that he would pass sentence upon him, upon his plea of guilty, because' he fenced with the questions. r In Virginia, upon the trial of a convict from the penitentiary for a felony committed there, another convict confined there for felony is by statute a competent witness for the prosecution. 8 n Hoffman v. Coster, 2 Wharton, 453. o See Baldwin's R. 90. p Com. v. Green, 17 Mass. 515; Jackson v. Rose, 2 Virg. Cas. 34; see Com. v. Hanlon, 3 Brewster, 461; Kirshner v. State, 9 Wisc. 140. See Wh. Con. of Laws, § 107, 769. q Com. Dig. 354, Testm. A. 5; R. v. Castell Careinlon, 8 East, 77; Lee Gansell, Cowp. 3; Bull. N. P. 392; Fitch v. Smallbrook, T. Raymond, 32; v. People v. Whipple, 9 Cow. 707; People v. Herrick, 13 Johns. 82; Cushman v. Loker, 2 Mass. 108; Skinner v. Perot, 1 Ash. 57; State v. Valentine, 7 Ired. 225; U. S. v. Dickenson, 2 McLean, 325; Dawley v. State, 4 Indiana, 128. r Alderson, B., R. v. Hincks, 2 C. & K. 464; S. C. 1 Den. C. C. 84. See post, § 792-3. s Johnson's case, 2 Gratt. 581. 719 The conviction must be proved by the record. s1 But it is now settled that a witness may be asked how long and why he was in jail or state-prison. $2 3. Defective Conviction. § 764. A conviction of larceny before a justice of the peace in a case within his jurisdiction, and a performance of the sentence, render a witness incompetent, although the complaint was so defective that judgment might have been reversed or arrested on error. t Excepted cases where convict may testify.—Where, even at common law, a convict is a party, in order that he may not be wholly remediless, he may make an affidavit necessary to his exculpation or defence, or for relief against an irregular judgment, or the like; u but it is said that his affidavit shall not be read to support a criminal charge. v The same principle which makes a wife admissible against her husband in case of violence committed on herself, would perhaps render a convict competent to obtain redress for personal injury, when no other evidence could be obtained. 4. Pardon. § 765. Disability by infamy may be removed by the produc'tion of a pardon under the great seal. v1 Unless the testimony of a person thus made competent is corroborated, the better opinion is that it will be insufficient to convict. w It is essential to establish the identity of the witness with the person pardoned. w1 To remove infamy, the pardon must be full. Thus, where a pardon remitted to the convict "the residue of the punishment s1 Ante, § 659; Real, in re, 55 Barbour, 186; S. C. 7 Abbott (N. Y.) Pr. N. S. 26. s2 Post, § 816. t Com. v. Keith, 8 Metc. 531. u Davis and Carter's case, 2 Salk. 461; R. v. Gardiner, 2 Burr. 1117; Atcheson v. Everitt, Cowp. 382; Skinner v. Perot, 1 Ashm. 57. v Walker v. Kearney, 2 Stra. 1148; R. v. Gardiner, 2 Burr. 1117. vl State v. Blaisdell, 33 N. H. 388. See ante, § 591 a. w U. S. v. Jones, 2 Wheel. C. C. 451. w Com. v. Hanlon, 3 Brewster, 461. he was sentenced to endure," it was held that his competency as a witness was not restored. x Where the disability is attached to the conviction of a crime by the express words of a statute, the pardon will not, according to the better opinion, restore the competency of the offender, the prerogative of the government being controlled by the authority of the express law. Thus, if a man be adjudged guilty on an indictment for perjury at common law, a pardon will restore his competency; but the contrary is the case if the conviction is founded on the statute of 5 Eliz. c. 9. y A pardon granted after the sentence of the court has been complied with, e. g. the fine paid, or the imprisonment expired, x Perkins v. Stevens, 24 Pick. 277; State v. Blaisdell, 33 N. H. 388. y R. v. Ford, 2 Salk. 689; Dover v. Maestaer, 5 Esp. 92, 94; Houghtaling v. Kelderhouse, 1 Parker C. C. 241; 2 Russ. on Cr. 595, 596; R. v. Greepe, 2 Salk. 513, 514; Bull. N. P. 292; Phil. & Am. on Ev. 21, 22. "The power of pardon in criminal cases," it was held by the supreme court of the United States, "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 into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed." U. S. v. Wilson, 7 Peters, 150. "It is a constituent part of the judicial system, that the judge sees only with judicial eyes and knows nothing respecting any particular case of which he is not informed judicially. A private deed, not com municated to him, whatever may be its character, whether a pardon or release, is totally unknown, and cannot be acted upon. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles; and would overturn those rules which have been settled by the wisdom of ages. There is nothing peculiar in a pardon, which ought to distinguish it in this respect from other facts; no legal principle known to the court will sustain such a distinction. A pardon is a deed, to the validity of which delivery is essential; and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment." (Ibid.) 721 purges disability, and restores competency. z Without pardon, infamy remains. 21 A pardon before conviction is equally operative. z2 Where a witness for the prosecution, in answer to a question by the prisoner's counsel, states that he had been convicted of felony and pardoned, the production of the pardon is not necessary to establish his competency. z3 § 766. Pardons are to be construed like grants, most favorable to the grantee. a Thus, an instrument issued by the President of the United States, directing the immediate discharge of one sentenced for mail robbery, was held to be a pardon. b The pardon must correctly recite the offence; and a misrecital will render it inoperative. c z U. S. v. Jones, 2 Wheel. C. C. 451; U. S. v. Stetter, post, note c. z1 State v. Benoit, 16 La. An. 273. z2 Com. v. Bush, 2 Duvall (Ky.), 264; see Garland, ex parte, 4 Wallace U. S. 333. Ante, § 591 a. falsely making, forging, and counterfeiting ten pieces of coin, in the resemblance and similitude of the silver coin which has been coined at the mint of the United States, called a half dollar; the second, for unlawfully and feloni 23 Howser v. Com. 1 P. F. Smith, ously passing, uttering, and publishing 332. Ante. a Hunt's case, b Jones v. Harris, 1 Strob. 160. c U. S. v. Stetter, U. S. Cir. Ct. Phila. Feb. 1852, Kane, J.: “When this indictment was on trial at the last session of the court, one Lewis George was offered as a witness for the prosecution, and was objected to as incompetent, because convicted of felony; but on the production of a pardon, he was allowed to be sworn, and thereupon testified to a fact material in the cause. The prisoner was found guilty; and a new trial having been moved for, it is now contended that George was improperly admitted as a witness. "The facts, as developed by the record, are these: George was tried at the May sessions of 1850, in this court, on an indictment containing two counts; the first for unlawfully, feloniously, and Where a pardon is obtained by fraud, it is void. d The subject of conditional pardon does not come up here for the exercise of the executive clemency: 666 Now therefore, be it known that 'I, Millard Fillmore, President of the United States of North America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, have granted, and do hereby grant unto him, the said Lewis George, a full and unconditional pardon, to take effect from and after the first day of July next. [Seal.] "In witness, &c. Done at Washington, this fourth day of June, A. D. 1851,' &c. "The exceptions, as they have been expanded in argument, embrace the following points: "1. That it is not competent in the President to grant a pardon after the expiration of the term of sentence. "2. That the pardon contemplated by the Constitution is of offences, not of the offender; and that this pardon is inoperative, because it does not set forth the offence pardoned. "3. That if the pardoning words of the instrument are to be referred by implication to the offence recited in the preamble, the recital is itself indefinite, and variant from the record of conviction. "1. I intimated my opinion on the first point, before the argument closed. I cannot doubt the constitutional authority of the President to pardon an offence, so long as any of its legal consequences remain. I do not enter upon the question, whether it is in the power of congress to attach consequences to a conviction which a pardon cannot remove. There are constitutional views of that question, which are not met in the reasonings of Mr. Hargrave (2 Jur. Arg. 221), nor in any of the cases which recognize the English doctrine. But here the disability was only consequential, not statutory; and I can see no reason for restricting the President's power of pardoning to the time during which the convict is undergoing sentence. In very many cases, the consequential disability is the most painful incident on the conviction. In some, the offence, though a grave one in its legal aspect, is morally venial, perhaps involving no turpitude whatever, and calling for a merely nominal sentence. It would be strange if such a sentence were to disqualify forever, because it did not allow time to invoke the President's clemency; for clearly congress could not relieve. Were such the law, a nominal sentence, to be effectively merciful, must bear a relation to the distance between the court and the capitol; and a Californian, to ransom his civil rights, must invoke some months of imprisonment beyond the rightful penance of his crime. But I need not pursue the argument. There is nothing before the court to show that the sentence of George was complied with, by the payment of the fine, which formed part of it; and, besides, the question of law has, I apprehend, been determined by the late Mr. Justice Thompson, in U. S. v. Jones, 2 Wheeler Cr. Cas. 151. "2. The second point of exception involves in its terms the question of a general pardon, the power to grant such a pardon, and its effect, if granted, on the legal competency of the convict. This power is one which can hardly be regarded as established in England, notwithstanding the numerous dicta in the ancient books (see the d 2 Hawk. P. C. 533, § 8, 9; R. v. Maddocks, 1 Sid. 430. Ante, § 591 b. |