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clergy; and sometimes after judgment, if it, suspensions of the enforcement of sentences be a small felony, tho out of clergy, or in temporary in character were often resorted order to & pardon or transportation. to on grounds of error or miscarriage of Crompt. Just. 22b, and these arbitrary re- justice which, under our system, would be prieves may be granted or taken off by the corrected either by new trials or by the exjustices of gaol-delivery, altho their sesercise of the power to review. (b) That sions be adjourned or finished, and this by not infrequently where the suspension eireason of common usage. 2 Dyer, 205a, 73 ther of the imposition of a sentence or of its Eng. Reprint, 452.

execution was made for the purpose of en"III. Ex necessitate legis, which is in case abling a pardon to be sought or bestowed, of pregnancy, where a woman is convict of by a failure to further proceed in the crimifelony or treason.”

nal cause in the future, although no pardon Blackstone thus expresses it:

had been sought or obtained, the punish"The only other remaining ways of avoid- ment fixed by law was es aped. But neither ing the execution of the judgment are by a of these conditions serve to convert the mere reprieve or a pardon; whereof the former exercise of a judicial discretion to tempois temporary only, the latter permanent. rarily suspend for the accomplishment of a

"I. A reprieve (from reprendre, to take purpose contemplated by law into the exback), is the withdrawing of a sentence for istence of an arbitrary judicial power to an interval of time; whereby the execution is permanently refuse to enforce the law. suspended. This may be, first ex arbitrio And we can deduce no support for the conjudicis; either before or after judgment; trary contention from the rulings in 2 as, where the judge is not satisfied with the Dyer, 165a, 205a, and 235a, 73 Eng. Reprint, verdict, or the evidence is suspicious, or 359, 452, 519, since those cases but illustrate the indictment is insufficient, or he is doubt. the exercise of the conceded, reasonable, ful whether the offense be within clergy; discretionary power to reprieve to enable a or sometimes if it be a small felony, or any lawful end to be attained. Nor from the favourable circumstances appear in the fact that common-law courts possessed the criminal's character, in order to give room power by recognizance to secure good beto apply to the Crown for either an abso- havior, that is, to enforce the law, do we lute or conditional pardon. These arbitrary think any support is afforded for the proporeprieves may be granted or taken off by sition that those courts possessed the arthe justices of gaol delivery, although their bitrary discretion to permanently decline to session be finished, and their commission ex. enforce the law. The cases of Hart's Trial, pired; but this rather by common usage, 30 How. St. Tr. 1344 and Reg. v. Dunn, 12 than of strict right.

Q. B. 1026, 1041, 116 Eng. Reprint, 1155, "Reprieves may also be ex necessitate 18 L. J. Mag. Cas. N. S. 41, certainly do legis: as, where a woman is capitally con- not tend to so establish, since they simply victed, and pleads her pregnancy; though manifest the exertion of the power of the this is no cause to stay the judgment, yet courts after a conviction and the suffering it is to respite the execution till she be of the legal penalty to exact from the condelivered. This is a mercy dictated by the victed person a bond for his good behavior law of nature, in favorem prolis.” Bk. 4, thereafter. chap. 31, pp. 394, 305.

While it may not be doubted under the 3. The support for the power asserted common law as thus stated that courts

claimed to be derived from the adjudicapossessed and asserted the right to exert

tion of state and Federal courts. judicial discretion in the enforcement of the law to temporarily suspend either the im- Coming first to the state courts, undoubtposition of sentence or its execution when edly there is conflict in the decisions. The imposed to the end that pardon might be area, however, of conflict will be narrowed procured, or that a violation of law in by briefly stating and contrasting the cases. other respects might be prevented, we are We shall do so by referring chronologically unable to perceive any ground for sustain to the cases denying the power, and then to ing the proposition that, at common law, those relied upon to establish it. the courts possessed or claimed the right In 1838 the supreme court of North Carowhich is here insisted upon. No elaboration | lina in State v. Bennett, 20 N. C. 170 (4 could make this plainer than does the text Dev. & B. L. 43), was called upon to deof the passages quoted. It is true that, cide whether a trial court had the right to owing to the want of power in common-law permanently remit upon condition a part courts to grant new trials, and to the ab- of a criminal sentence fixed by statute. The sence of a right to review convictions in a court said: higher court, it is, we think, to be conceded: "We know that a practice bas prevailed (a) That both suspensions of sentence and to some extent of inflicting fines with a

sus

provision that they should be diminished , margin, in careful opinions denied the ex. or remitted altogether upon matter there istence of the power now claimed.1 after to be done, or shown to the court by The cases to the contrary are these, omitthe person convicted. But we can find no ting one in a court of original jurisdiction authority in law for this practice, and feel in Massachusetts, referred to by counsel, but ourselves bound, upon this first occasion in which there is no written opinion: when it is brought judicially to our notice, In 1874 in Com. v. Dowdican, supra, the to declare it illegal.”

right in a criminal case "to lay the case on In 1860, in People v. Morrisette, 20 How. file” and postpone the sentence was Pr. 118, an accused, after pleading guilty, tained, the court declaring that the practice asked a suspension of sentence and to be bad long existed, and was recognized by then discharged from custody. The court statutes, one of which regulated the grantsaid:

ing of parol by courts in liquor cases. "I am of the opinion the court does not The case just cited was approvingly repossess the power to suspend sentence in ferred to in Sylvester v. State, 65 N. H. definitely in any case. As I understand the 193, 20 Atl. 954, and declared to express the law, it is the duty of the court, unless ap- practice long prevailing in New Hampshire. plication be made for a new trial, or a mo- In 1894, in People ex rel. Forsyth v. tion in arrest of judgment be made for Court of Sessions, 141 N. Y. 288, 23 L.R.A. some defect in the indictment, to pronounce 856, 36 N. E. 386, 15 Am. Crim. Rep. 675, judgment upon every prisoner convicted of in holding that a trial court had power to crime by a jury, who pleads guilty. An in- permanently suspend a sentence for reasong definite suspension of the sentence pre

dehors the legality of the conviction, it scribed by law is a quasi pardon, provided was declared that such power existed at the prisoner be discharged from imprison. common law and hence prevailed in the ment. No court in the state has any pardon

1 People v. Kennedy, 58 Mich. 372, 25 N. ing power. That power is vested exclusively

W. 318 (1885); Gray v. State, 107 Ind. in the governor."

177, 8 N. E. 16 (1886); People v. BlackIn People v. Brown, 54 Mich. 15, 19 N. burn, '6 Utah, 347, 23 Pac. 759 (1890); W. 571, in deciding that no power to per- State v. Voss, 80 lowa, 467, 8 L.R.A. 767, manently suspend a sentence existed, speak- 45 N. W. 898 (1891); People ex rel. Benton ing through Mr. Chief Justice Cooley the Court of Sessions, 8 N. Y. Crim. Rep.

355, 19 N. Y. Supp. 508 (1892) affirmed in court said:

66 Hun, 550, 50 N. Y. S. R. 234, 21 N. Y. "Now it is no doubt competent for a crim. Supp. 659 (1893); Re Strickler, 51 Kan. inal court, after conviction, to stay for a 700, 33 Pac. 620 (1893); People ex rel. time its sentence; and many good reasons Smith v. Allen, 155 Ill. 61, 41 L.R.A. 473, 39 may be suggested for doing so; such as to N. E. 568 (1895); Re Markuson, 5 N. D.

180, 64 N. W. 939 (1895); Re Webb, 89 give opportunity for a motion for a new

Wis. 354, 27 L.R.A. 356, 46 Am. St. Rep. trial or in arrest, or to enable the judge to 846, 62 Ń. W. 177, 9 Am. Crim. Rep. 702 better satisfy his own mind what the pun- (1895); United States v. Folsom, 8 N. M. ishment ought to be (Com. v. Dowdican, 651, 46 Pac. 447 (1896); State v. Murphy, 115 Mass. 133); but it was not a suspen- 23 Nev. 390, 48 Pac. 628_(1897); Neal v.

State, 104 Ga. 509, 42 L.R.A. 190, 69 Am. sion of judgment of this sort that was re

St. Rep. 175, 30 S. E. 858 (1898); Republic quested or desired in this case; it was not

v. Pedro, 11 Haw. 287 (1898); Re Beck, 63 à mere postponement; it was not delay for Kan. 57, 64 Pac. 971' (1901); Miller v. any purpose of better advising the judicial Evans, 115 Iowa, 101, 56 L.R.A. 101, 91 mind what ought to be done; but it was am. St. Rep. 143, 88 N. W. 198 (1901); an entire and absolute remission of all pen- People ex rel. Boenert v. Barrett, 202 ini. alty and the excusing of all guilt. In other 287, 63, L.R.A. 82, 95 Am. St. Rep. 230, 67

N. E. 23 (1903); Re Flint, 25 Utah, 338, 95 words, what was requested of the judge was

Am. St. Rep. 853, 71 Pac. 531 (1903); State that he should take advantage of the fact v. Dalton, 109 Tenn. 544, 72 S. W. 456, 15 that he alone was empowered to pass sen

Am. Crim. Rep. 653 (1902); Grundel v. tence, and, by postponing indefinitely the People, 33 Colo. 191, 108 Am. St. Rep. performance of this duty, indirectly, but to 100 Me. 123, 60 Atl. 892 (1905); McCamp

75, 79 Pac. 1022 (1905); Tuttle v. Lang, complete effect, grant to the respondent a bell-v. State, 116 Tenn. 98, 93 s. W. 100 pardon for his crime.”

(1905); Re St. Hilaire, 101 Me. 522, 64 And considering the doctrine as to the Atl. 882, 8 Ann. Cas. 385 (1906); Tanner want of power thus expounded from the v: Wiggins, 54 Fla. 203, 45 So. 459, 14 Ann. point of view of the common law and of Cas. 718 (1907); State v. Hockett, 129 Mo.

App. 639, 108 S. W. 599 (1908); Ex parte every argument here relied upon, state Clendenning, 22 Okla. 108, 19 L.R.A. (N.S.) courts have, in the cases which are in the 1041, 132 Am. St. Rep. 628, 97 Pac. 656 state, this being supported by a quotation second place, in so far as the Forsyth Case, from Hale's Pleas of the Crown. In addi. supra, is concerned and its declaration as tion it was said, referring to a state parol to what was the common law upon the substatute enacted subsequent to the conviction, ject, the error thus fallen into is not only that such statute, while it conferred no new demonstrated by what we have said as to or other power than that possessed at com- the common law, but is additionally shown mon law, nevertheless imposed the duty by the fact that the quotation from Hale's to see to it that the power was not lost Pleas of the Crown, made in the opinion, to impose future punishment after the contains clauses supporting the opinion exrelease if the condition of suspension was pressed as to the common law when in fact violated.

the clauses in question, it would seem, were, In the cases cited in the margin the pow. by some error of citation, mistakenly ater was upheld upon the rulings in Com. tributed to Hale. We say this because the v. Dowdican, and the Forsyth Case, supra, clauses referred to and attributed to Ilale or because of a practice long prevailing. 2 in the quotation are not found in any

Leaving aside the question of the asserted edition of the Pleas of the Crown which we duty to sustain the doctrine because of the have been able to examine, and it is stated long-established practice, which we shall by counsel for the United States that, after hereafter consider, we think it clear that diligent search, no passage containing the the long and settled line of authority to clauses has been discovered, and the existwhich we have previously referred, denying ence of any edition of the work containing the existence of the power, is in no way them is not pointed out by opposing counsel. weakened by the rulings which lie at the But whether this be well founded or not, basis of the cases relied upon to the con- as the conclusion concerning the common trary. In the first place, on the face of the law which the case expressed is, we think, opinion in Com. v. Dowdican, supra, it obviously unsound, we are unable, on the would seem certain that that case treated authority of such a mistaken view, to disthe power as being brought by the state regard the long established and sound rule legislation which was referred to within the laid down in the many state cases which we domain of reasonable discretion, since by have quoted. the effect of that legislation the right

So far as the courts of the United States to exert such power, if not directly au- are concerned, it suffices to say that we have thorized, was at least, by essential impli- been referred to no opinion maintaining the cation, sanctioned by the state law. In the asserted power, and, on the contrary, in (1908); Ex parte Cornwall, 223 Mo. 259, Rep. 547 (1881); People v. Mueller, 15 135 Am. St. Rep. 507, 122 S. W. 666 (1909); Chicago Leg. News, 364 (1883); Com. v. Wall v. Jones, 135 Ga. 425, 69 S. E. 548 Maloney, 145 Mass. 205, 13 N. E. 482 (1910); State v. Smith, 173 Ind. 388, 90 1887); Ex parte Williams, 26 Fla. 310, 8 N. E. 607 (1909); State ex rel. Cary v. So. 425 (1890); State v. Crook, 115 N. Langum, 112 Minn. 121, 127 N. W. 465 C.760, 29 L.R.A. 260, 20 S. E. 513 (1910); Re Peterson, 19 Idaho, 433, 33(1894); State v. Whitt, 117 N. C. 804, L.R.A. (N.S.), 1067, 113 Pac. 729 (1911); 23 S. E. 452 (1895); People ex rel. DunState v. Abbott, 87 S. C. 466, 33 L.R.A. nigan v. Webster, 14 Misc. 617, 36 N. (N.S.) 112, 70 S. E. 6, Ann. Cas. 1912B, Y. Supp. 745 (1895); Weber v. State, 58 1189 (1911); Spencer v. State, 125 Tenn. Ohio St. 616, 41 L.R.A. 472, 51 N. E. 116 64, 38 L.R.A. (N.S.), 680, 140 S. W. 597 (1898); Schaefer v. State, 7 Ohio C. C. N. (1911); State ex rel. Dawson v. Sapp, 87 S. 292, 27 Ohio C. C. 791 (1905); Re Lee, Kan. 740, 42 L.R.A. (N.S.) 249, 125 Pac. 3 Ohio N. P. N. S. 533, 16 Ohio S. & C. P. 78 (1912); Daniel v. Persons, 137 Ga. 826, Dec. 259 (1905); State v. Hilton, 151 N. C. 74 S. E. 260 (1912); State v. Sturgis, 110 687, 65 S. E. 1011 (1909); State ex rel. Me. 96, 43 L.R.A. (N.S.) 443, 85 Atl. 474 Buckley v. Drew, 75 N. H. 402, 74 Atl. 875 (1912); State v. Talberth, 109 Me. 575, 85 (1909); State ex rel. O'Connor v. Drew, 75 Atl. 296 (1912); Fuller v. State, 100 Miss. N. H. 604, 76 Atl. 191 (1910); Re Hinson, 811, 39 L.R.A.(N.S.) 247, 57 So. 806, Ann. 156 N. C. 250, 36 L.R.A. (N.S.) 352, 72 S. Cas. 1914A, 98 (1912); Ex parte Bugg, 163 E. 310 (1911); State ex rel. Gehrmann v. Mo. App. 44, 145 S. W. 831 (1912); Snod. Osborne, 79 N. J. Eq. 430, 82 Atl. 424 grass v. State, 67 Tex. Crim. Rep. 615, 41(1911); People v. Goodrich, 149 N. Y. Supp. L.R.A. (N.S.) 1144, 150 S. W. 162 (1912); | 406 (1914); State v. Tripp, 168 N. C. 150, Roberts v. Wansley, 137 Ga. 439, 73 S. E. 83 S. E. 630 (1914); State v. Johnson, 169 654 (1912); Hancock v. Rogers, 140 Ga. N. C. 311, 84 S. E. 767 (1915). See Greene 688, 79 S. E. 558 (1913); Brabandt v. v. State, 88 Ark. 290, 114 S. W. 477 (1908); Com. 157 Ky, 130, 162 S. W. 786 (1914); Joiner v. State, 94 Ark. 198, 126 S. W. 723 Re Hart, 29 N. D. 38, L.R.A.1915C, 1169, (1910); People v. Patrich, 118 Cal. 332, 149 N. W. 568 (1914); Reese v. Olsen, 44 50 Pac. 425 (1897); Com. ex rel. Nuber v. Utah, 318, 139 Pac. 941 (1914).

Keeper, 6 Pa. Super. Ct. 420 (1898); Com. . 2 State v. Addy, 43 N. J. L. 113, 39 Ain. I v. Dunleavy, 16 Pa. Super. Ct. 380 (1901).

come

the opinion in the only case in which the ground that it was not possessed. Indeed, subject was considered, it was expressly de- so far was this the case that we think it cided the power was wanting. United States may be said that the exertion of the power v. Wilson, 46 Fed. 748 (1891). It is true under the circumstances stated was interthat in the District of Columbia the exist- mittent, and was not universal, but partial. ence of the power was maintained. Miller As amply shown by the case before us, v. United States, 41 App. D. C. 52 (1913). we think also it is apparent that the situaBut the unsoundness of the grounds upon tion thus described was brought about by which the conclusion was based is demon. the scrupulous desire of judges not to abuse strated by what we have previously said; their undoubted discretion as to granting and, aside from this, as the subject was cov. new trials, and yet to provide a remedy for ered by an act of Congress conferring power conditions in cases where a remedy was of parol (Act of June 25, 1910, 36 Stat. at called for in the interest of the administraL. 864, chap. 433), the case requires notion of the criminal law itself, as well as further consideration,

by the most obvious considerations of hu.

manity and public well-being,-conditions The duty to recognize the power as lawful arising in the nature of things from the

because of its exertion in practice by state of proof in cases coming before them the state and Federal courts, and the which could not possibly have been foreseen implications arising therefrom.

and taken into consideration by the law

making mind in fixing in advance the pen. There is no doubt that in some states, alty to be imposed for a particular crime. without reference to probation legislation or and the force of this conclusion will bean affirmative recognition of any doctrine

more manifest by considering that supporting the power, it was originally ex. nowhere except sporadically was any objecerted, and the right to continue to do so tion made to the practice by the prosecutcame to be recognized solely as the resulting officers of the United States, who, inof the prior practice. State ex rel. Gehr. deed, it is said, not infrequently invoked mann v. Osborne, 79 N. J. Eq. 430, 82 Atl. its exercise. Albeit this is the case, we 424.

can see no reason for saying that we may As to the courts of the United States, in now hold that the right exists to continue one of the circuits, the first, especially in a practice which is inconsistent with the the Massachusetts district, it is admitted Constitution, since its exercise, in the very the practice has in substance existed for nature of things, amounts to a refusal by probably sixty years, as the result of a the judicial power to perform a duty restsystem styled “laying the case on file.” | ing upon it, and, as a consequence thereof, The origin of this system is not explained, to an interference with both the legislative but it is stated in the brief supporting the and executive authority as fixed by the practice that courts of the United States Constitution. The fact that it is said in bave considered the existing state laws as argument that many persons, exceeding two to probation, and have endeavored in a cer- thousand, are now at large who otherwise tain manner to conform their action there would be imprisoned as the result of the to. It is true, also, that in the courts of exertion of the power in the past, and that the United States, sometimes in one or misery and anguish and miscarriage of jusmore districts in a circuit and sometimes tice may come to many innocent persons by in other circuits, in many instances the now declaring the practice illegal, presents power here asserted was exerted, it would a grave situation. But we are admonished seem without any question, there being no that no authority exists to cure wrongs reobjection raised by the representatives of sulting from a violation of the Constitution the United States; indeed, it is said that in the past, however meritorious may have in Ohio, where the power, as we have seen, been the motive giving rise to it, by sancwas recognized as existing, it was exerted tioning a disregard of that instrument in by Mr. Justice Matthews of this court when the future. On the contrary, so far as sitting at circuit, and there and elsewhere, wrong resulting from an attempt to do it is pointed out, the power was also ex- away with the consequences of the mistaken erted in some instances by other judges exercise of the power in the past is conthen or subsequently members of this court. cerned, complete remedy may be afforded by But yet it is also true that, numerous as the exertion of the pardoning power; and, are the instances of the exertion of the so far as the future is concerned, that is, power, the practice was by no means uni- the causing of the imposition of penalties versal, many United States judges, even in as fixed to be subject, by probation legislaa district where the power had been ex. tion or such other means as the legislative erted, on a change of incumbency, persist- mind may devise, to such judicial discretion ently refusing to exert the power on the as may be adequate to enable courts to

discretion, trebe infinite variations | I State of New york in and for the county

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meet, of an enlarged but N ERROR to the Court of the wise which may be presented to them for judg- of Albany, in that state, to review a judg. ment, recourse must be had to Congress, ment entered pursuant to the mandate of whose legislative power on the subject is, the Court of Appeals, which affirmed a in the very naứure of things, adequately judgment of the Appellate Division of the complete.

Supreme Court for the Third Department, While the conclusions just stated inevita- affirming orders of the Supreme Court at a bly exact that the rule which is before us Special Term, denying the application of a be made absolute and that the mandamus corporation for a writ of mandamus to comissue, nevertheless we are of opinion that pel the treasurer of the state to recognize the exceptional conditions which we have the validity of the statute incorporating described require that we exercise that rea- such corporation. Dismissed for want of sonable discretion with which we are vested jurisdiction. to temporarily suspend the issue of the See same case below, in appellate division, writ so as to afford ample time for execu

158 App. Div. 398, 143 N. Y. Supp. 454; tive clemency or such other action as may in court of appeals, 212 N. Y. 1, 105 N. E. be required to meet the situation. And for 849, Ann. Cas. 1915D, 56. this purpose the issue of the writ will be The facts are stated in the opinion. stayed until the end of this term, unless Messrs. Henry W. Taft and Francis the United States otherwise requests, wlien Sims McGrath for plaintiff in error. it will go as a matter of course.

Messrs. Merton E. Lewis, C. T. Dawes, Rule made absolute.

and Mr. E. E. Woodbury, Attorney General

of New York, for defendant in error. 1212 U. S. 272)

Mr. Justice Clarke delivered the opinion LONG SAULT DEVELOPMENT COM- of the court: PANY, Piff. in Err.,

This proceeding was commenced in the

supreme court of New York by the Long HOMER D. CALL (as Successor of John J. Sault Development Company, hereinafter

Kennedy), as Treasurer of the State of called the plaintiff, for the purpose of testNew York, Deft. in Err.

ing the constitutionality of an act of the COURTS (394(9)— ERROR TO STATE COURT | legislature of that state, passed in 1907,

-FEDERAL QUESTION-DECISION ON Non- to incorporate the plaintiff and to grant to FEDERAL GROUND — IMPAIRING CONTRACT it important rights in the bed of, and with OBLIGATIONS.

A decision of the highest court of the respect to the use of the waters of, the St. state refusing to recognize the existence of Lawrence river. Laws of 1907, chap. 355. alleged property rights of the Long Sault

The case is now in this court on the Development Company in the bed and claim that this Act of 1907 is a valid law, waters of the St. Lawrence river, purport and that the property rights springing from ing to have been granted by N. Y. Laws the grants therein and the acceptance of 1907, chap. 355, is not reviewable in the them by the plaintiff were impaired by a Federal Supreme Court on the theory that later act, passed in 1913, purporting to recontract obligations were impaired by the peal the Act of 1907, and by the effect given effect given by the state court to the repealing act (N. Y. Laws 1913, chap. 452), to this later act by the decision of the court where such decision was based upon the of appeals, rendered in June, 1914. ground that irrespective of, and without The title of the Act of 1907 indicates the reference to, the subsequent repealing legis. comprehensive character of the grants which lation, the original grant was an uncon- the legislature attempted to make by ito stitutional attempt by the state to bargain It reads as follows: “An Act to Incorpo• away lands under navigable waters to a private corporation agreeing to maintain and to Authorize Said Company to Con.

rate the Long Sault Development Company, navigation thereover "in as good condition as

struct and Maintain Dams, Canals, Power. at present," thereby parting with its power to improve such navigation, houses, and Locks at or near Long Sault and in effect abdicating the trust upon Island, for the Purpose of Improving the which the state held control over the river Navigation of the St. Lawrence River and as navigable water.

Developing Power from the Waters Thereof, (Ed. Note.--For other cases, see Courts, Cent. and to Construct and Maintain a Bridge, Dig. $ 1055; Dec. Dig. 394(9).)

and Carry on the Manufacture of Com. [No. 49.]

modities."

The act proceeds, first, to incorporate the Argued April 14 and 17, 1916. Reargued Long Sault Development Company, giving

October 31, 1916. Decided December 11, it perpetual corporate existence, and then 1916.

in terms to authorize it to construct, main. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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