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 a 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 ses- ercise 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 enabling a pardon to be sought or bestowed, by a failure to further proceed in the criminal cause in the future, although no pardon had been sought or obtained, the punishment fixed by law was es aped. But neither of these conditions serve to convert the mere exercise of a judicial discretion to temporarily suspend for the accomplishment of a purpose contemplated by law into the existence of an arbitrary judicial power to permanently refuse to enforce the law. “III. Ex necessitate legis, which is in case of pregnancy, where a woman is convict of felony or treason." Blackstone thus expresses it: "The only other remaining ways of avoiding the execution of the judgment are by a reprieve or a pardon; whereof the former is temporary only, the latter permanent. And we can deduce no support for the contrary contention from the rulings in 2 Dyer, 165a, 205a, and 235a, 73 Eng. Reprint, 359, 452, 519, since those cases but illustrate the exercise of the conceded, reasonable, discretionary power to reprieve to enable a lawful end to be attained. Nor from the fact that common-law courts possessed the power by recognizance to secure good be "I. A reprieve (from reprendre, to take back), is the withdrawing of a sentence for an interval of time; whereby the execution is suspended. This may be, first ex arbitrio judicis; either before or after judgment; as, where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubt ful whether the offense be within clergy; or sometimes if it be a small felony, or any favourable circumstances appear in the criminal's character, in order to give room to apply to the Crown for either an abso-havior, that is, to enforce the law, do we lute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their session be finished, and their commission expired; but this rather by common usage, than of strict right. "Reprieves may also be ex necessitate legis: as, where a woman is capitally convicted, and pleads her pregnancy; though this is no cause to stay the judgment, yet it is to respite the execution till she be delivered. This is a mercy dictated by the law of nature, in favorem prolis." Bk. 4, chap. 31, pp. 394, 395. think any support is afforded for the proposition that those courts possessed the arbitrary discretion to permanently decline to enforce the law. The cases of Hart's Trial, 30 How. St. Tr. 1344 and Reg. v. Dunn, 12 Q. B. 1026, 1041, 116 Eng. Reprint, 1155, 18 L. J. Mag. Cas. N. S. 41, certainly do not tend to so establish, since they simply manifest the exertion of the power of the courts after a conviction and the suffering of the legal penalty to exact from the convicted person a bond for his good behavior thereafter. claimed to be derived from the adjudication of state and Federal courts. Coming first to the state courts, undoubtedly there is conflict in the decisions. The area, however, of conflict will be narrowed by briefly stating and contrasting the cases. We shall do so by referring chronologically to the cases denying the power, and then to those relied upon to establish it. While it may not be doubted under the 3. The support for the power asserted common law as thus stated that courts possessed and asserted the right to exert judicial discretion in the enforcement of the law to temporarily suspend either the imposition of sentence or its execution when imposed to the end that pardon might be procured, or that a violation of law in other respects might be prevented, we are unable to perceive any ground for sustaining the proposition that, at common law, 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 of the passages quoted. It is true that, owing to the want of power in common-law courts to grant new trials, and to the absence of a right to review convictions in a higher court, it is, we think, to be conceded: (a) That both suspensions of sentence and Dev. & B. L. 43), was called upon to decide whether a trial court had the right to permanently remit upon condition a part of a criminal sentence fixed by statute. The court said: "We know that a practice has prevailed to some extent of inflicting fines with a provision that they should be diminished or remitted altogether upon matter thereafter to be done, or shown to the court by the person convicted. But we can find no authority in law for this practice, and feel ourselves bound, upon this first occasion when it is brought judicially to our notice, to declare it illegal." In 1860, in People v. Morrisette, 20 How. Pr. 118, an accused, after pleading guilty, asked a suspension of sentence and to be then discharged from custody. The court said: "I am of the opinion the court does not possess the power to suspend sentence indefinitely in any case. As I understand the law, it is the duty of the court, unless application be made for a new trial, or a motion in arrest of judgment be made for some defect in the indictment, to pronounce judgment upon every prisoner convicted of crime by a jury, who pleads guilty. An indefinite suspension of the sentence prescribed by law is a quasi pardon, provided the prisoner be discharged from imprisonment. No court in the state has any pardon ing power. That power is vested exclusively in the governor." In People v. Brown, 54 Mich. 15, 19 N. W. 571, in deciding that no power to permanently suspend a sentence existed, speaking through Mr. Chief Justice Cooley the court said: "Now it is no doubt competent for a criminal court, after conviction, to stay for a time its sentence; and many good reasons may be suggested for doing so; such as to give opportunity for a motion for a new trial or in arrest, or to enable the judge to better satisfy his own mind what the punishment ought to be (Com. v. Dowdican, 115 Mass. 133); but it was not a suspension of judgment of this sort that was requested or desired in this case; it was not a mere postponement; it was not delay for any purpose of better advising the judicial | mind what ought to be done; but it was an entire and absolute remission of all penalty and the excusing of all guilt. In other words, what was requested of the judge was that he should take advantage of the fact that he alone was empowered to pass sentence, and, by postponing indefinitely the performance of this duty, indirectly, but to complete effect, grant to the respondent a pardon for his crime." And considering the doctrine as to the want of power thus expounded from the point of view of the common law and of every argument here relied upon, state courts have, in the cases which are in the margin, in careful opinions denied the existence of the power now claimed.1 The cases to the contrary are these, omitting one in a court of original jurisdiction in Massachusetts, referred to by counsel, but in which there is no written opinion: In 1874 in Com. v. Dowdican, supra, the right in a criminal case "to lay the case on file" and postpone the sentence was sustained, the court declaring that the practice had long existed, and was recognized by statutes, one of which regulated the granting of parol by courts in liquor cases. The case just cited was approvingly referred to in Sylvester v. State, 65 N. H. 193, 20 Atl. 954, and declared to express the practice long prevailing in New Hampshire. In 1894, in People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 23 L.R.A. 856, 36 N. E. 386, 15 Am. Crim. Rep. 675, in holding that a trial court had power to permanently suspend a sentence for reasons dehors the legality of the conviction, it was declared that such power existed at common law and hence prevailed in the W. 318 (1885); Gray v. State, 107 Ind. 1 People v. Kennedy, 58 Mich. 372, 25 N. 177, 8 N. E. 16 (1886); People v. Blackburn, 6 Utah, 347, 23 Pac. 759 (1890); State v. Voss, 80 lowa, 467, 8 L.R.A. 767, 45 N. W. 898 (1891); People ex rel. Benton v. Court of Sessions, 8 N. Y. Crim. Rep. 355, 19 N. Y. Supp. 508 (1892) affirmed in 66 Hun, 550, 50 N. Y. S. R. 234, 21 N. Y. Supp. 659 (1893); Re Strickler, 51 Kan. 700, 33 Pac. 620 (1893); People ex rel. Smith v. Allen, 155 İll. 61, 41 L.R.A. 473, 39 N. E. 568 (1895); Re Markuson, 5 N. D. 180, 64 N. W. 939 (1895); Re Webb, 89 Wis. 354, 27 L.R.A. 356, 46 Am. St. Rep. 846, 62 N. W. 177, 9 Am. Crim. Rep. 702 (1895); United States v. Folsom, 8 N. M. 651, 46 Pac. 447 (1896); State v. Murphy, 23 Nev. 399, 48 Pac. 628 (1897); Neal v. State, 104 Ga. 509, 42 L.R.A. 190, 69 Am. St. Rep. 175, 30 S. E. 858 (1898); Republic v. Pedro, 11 Haw. 287 (1898); Re Beck, 63 Kan. 57, 64 Pac. 971 (1901); Miller v. Evans, 115 Iowa, 101, 56 L.R.A. 101, 91 Am. St. Rep. 143, 88 N. W. 198 (1901); 287, 63 L.R.A. 82, 95 Am. St. Rep. 230, 67 People ex rel. Boenert v. Barrett, 202 111. N. E. 23 (1903); Re Flint, 25 Utah, 338, 95 Am. St. Rep. 853, 71 Pac. 531 (1903); State v. Dalton, 109 Tenn. 544, 72 S. W. 456, 15 Am. Crim. Rep. 653 (1902); Grundel v. People, 33 Colo. 191, 108 Am. St. Rep. 75, 79 Pac. 1022 (1905); Tuttle v. Lang, 100 Me. 123, 60 Atl. 892 (1905); McCampbell v. State, 116 Tenn. 98, 93 S. W. 100 (1905); Re St. Hilaire, 101 Me. 522, 64 Atl. 882, 8 Ann. Cas. 385 (1906); Tanner v. Wiggins, 54 Fla. 203, 45 So. 459, 14 Ann. Cas. 718 (1907); State v. Hockett, 129 Mo. App. 639, 108 S. W. 599 (1908); Ex parte Clendenning, 22 Okla. 108, 19 L.R.A. (N.S.) 1041, 132 Am. St. Rep. 628, 97 Pac. 650 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, by some error of citation, mistakenly at tributed to Hale. We say this because the clauses referred to and attributed to IIale in the quotation are not found in any edition of the Pleas of the Crown which we have been able to examine, and it is stated by counsel for the United States that, after diligent search, no passage containing the clauses has been discovered, and the existence of any edition of the work containing them is not pointed out by opposing counsel. But whether this be well founded or not, as the conclusion concerning the common law which the case expressed is, we think, obviously unsound, we are unable, on the authority of such a mistaken view, to disregard the long established and sound rule laid down in the many state cases which we have quoted. In the cases cited in the margin the pow er was upheld upon the rulings in Com. v. Dowdican, and the Forsyth Case, supra, or because of a practice long prevailing. 2 Leaving aside the question of the asserted duty to sustain the doctrine because of the long-established practice, which we shall hereafter consider, we think it clear that the long and settled line of authority to which we have previously referred, denying the existence of the power, is in no way weakened by the rulings which lie at the basis of the cases relied upon to the contrary. In the first place, on the face of the opinion in Com. v. Dowdican, supra, it would seem certain that that case treated the power as being brought by the state legislation which was referred to within the domain of reasonable discretion, since by the effect of that legislation the right to exert such power, if not directly authorized, was at least, by essential implication, sanctioned by the state law. In the (1908); Ex parte Cornwall, 223 Mo. 259,, 135 Am. St. Rep. 507, 122 S. W. 666 (1909); Wall v. Jones, 135 Ga. 425, 69 S. E. 548 (1910); State v. Smith, 173 Ind. 388, 90 N. E. 607 (1909); State ex rel. Cary v. Langum, 112 Minn. 121, 127 N. W. 465 (1910); Re Peterson, 19 Idaho, 433, 33 L.R.A. (N.S.) 1067, 113 Pac. 729 (1911); State v. Abbott, 87 S. C. 466, 33 L.R.A. (N.S.) 112, 70 S. E. 6, Ann. Cas. 1912B, 1189 (1911); Spencer v. State, 125 Tenn. 64, 38 L.R.A. (N.S.) 680, 140 S. W. 597 (1911); State ex rel. Dawson v. Sapp, 87 Kan. 740, 42 L.R.A. (N.S.) 249, 125 Pac. 78 (1912); Daniel v. Persons, 137 Ga. 826, 74 S. E. 260 (1912); State v. Sturgis, 110 Me. 96, 43 L.R.A. (N.S.) 443, 85 Atl. 474 (1912); State v. Talberth, 109 Me. 575, 85 Atl. 296 (1912); Fuller v. State, 100 Miss. 811, 39 L.R.A. (N.S.) 247, 57 So. 806, Ann. Cas. 1914A, 98 (1912); Ex parte Bugg, 163 Mo. App. 44, 145 S. W. 831 (1912); Snodgrass v. State, 67 Tex. Crim. Rep. 615, 41 L.R.A. (N.S.) 1144, 150 S. W. 162 (1912); Roberts v. Wansley, 137 Ga. 439, 73 S. E. 654 (1912); Hancock v. Rogers, 140 Ga. 688, 79 S. E. 558 (1913); Brabandt v. .Com. 157 Ky. 130, 162 S. W. 786 (1914); Re Hart, 29 N. D. 38, L.R.A.1915C, 1169, 149 N. W. 568 (1914); Reese v. Olsen, 44 Utah, 318, 139 Pac. 941 (1914). 2 State v. Addy, 43 N. J. L. 113, 39 Am. So far as the courts of the United States are concerned, it suffices to say that we have been referred to no opinion maintaining the asserted power, and, on the contrary, in Rep. 547 (1881); People v. Mueller, 15 Chicago Leg. News, 364 (1883); Com. v. Maloney, 145 Mass. 205, 13 N. E. 482 (1887); Ex parte Williams, 26 Fla. 310, 8 So. 425 (1890); State v. Crook, 115 N. C. 760, 29 L.R.A. 260, 20 S. E. 513 (1894); State v. Whitt, 117 N. C. 804, 23 S. E. 452 (1895); People ex rel. Dunnigan v. Webster, 14 Misc. 617, 36 N. Y. Supp. 745 (1895); Weber v. State, 58 Ohio St. 616, 41 L.R.A. 472, 51 N. E. 116 (1898); Schaefer v. State, 7 Ohio C. C. N. S. 292, 27 Ohio C. C. 791 (1905); Re Lee, 3 Ohio N. P. N. S. 533, 16 Ohio S. & C. P. Dec. 259 (1905); State v. Hilton, 151 N. C. 687, 65 S. E. 1011 (1909); State ex rel. Buckley v. Drew, 75 N. II. 402, 74 Atl. 875 (1909); State ex rel. O'Connor v. Drew, 75 N. H. 604, 76 Atl. 191 (1910); Re Hinson, 156 N. C. 250, 36 L.R.A. (N.S.) 352, 72 S. E. 310 (1911); State ex rel. Gehrmann v. Osborne, 79 N. J. Eq. 430, 82 Atl. 424 (1911); People v. Goodrich, 149 N. Y. Supp. 406 (1914); State v. Tripp, 168 N. C. 150, 83 S. E. 630 (1914); State v. Johnson, 169 N. C. 311, 84 S. E. 767 (1915). See Greene v. State, 88 Ark. 290, 114 S. W. 477 (1908); Joiner v. State, 94 Ark. 198, 126 S. W. 723 (1910); People v. Patrich, 118 Cal. 332, 50 Pac. 425 (1897); Com. ex rel. Nuber v. Keeper, 6 Pa. Super. Ct. 420 (1898); Com. v. Dunleavy, 16 Pa. Super. Ct. 380 (1901). 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). But the unsoundness of the grounds upon which the conclusion was based is demonstrated by what we have previously said; and, aside from this, as the subject was covered by an act of Congress conferring power of parol (Act of June 25, 1910, 36 Stat. at L. 864, chap. 433), the case requires no further consideration. 4. The duty to recognize the power as lawful because of its exertion in practice by the state and Federal courts, and the implications arising therefrom. There is no doubt that in some states, without reference to probation legislation or an affirmative recognition of any doctrine supporting the power, it was originally exerted, and the right to continue to do so came to be recognized solely as the result of the prior practice. State ex rel. Gehrmann v. Osborne, 79 N. J. Eq. 430, S2 Atl. 424. As to the courts of the United States, in one of the circuits, the first, especially in the Massachusetts district, it is admitted the practice has in substance existed for probably sixty years, as the result of a system styled "laying the case on file." The origin of this system is not explained, but it is stated in the brief supporting the practice that courts of the United States have considered the existing state laws as to probation, and have endeavored in a certain manner to conform their action there to. It is true, also, that in the courts of the United States, sometimes in one or more districts in a circuit and sometimes in other circuits, in many instances the power here asserted was exerted, it would seem without any question, there being no objection raised by the representatives of the United States; indeed, it is said that in Ohio, where the power, as we have seen, was recognized as existing, it was exerted by Mr. Justice Matthews of this court when sitting at circuit, and there and elsewhere, it is pointed out, the power was also exerted in some instances by other judges then or subsequently members of this court. But yet it is also true that, numerous as are the instances of the exertion of the power, the practice was by no means universal, many United States judges, even in a district where the power had been exerted, on a change of incumbency, persistently refusing to exert the power on the we think also it is apparent that the situation thus described was brought about by the scrupulous desire of judges not to abuse their undoubted discretion as to granting new trials, and yet to provide a remedy for conditions in cases where a remedy was called for in the interest of the administration of the criminal law itself, as well as by the most obvious considerations of humanity and public well-being,-conditions arising in the nature of things from the state of proof in cases coming before them which could not possibly have been foreseen and taken into consideration by the lawmaking mind in fixing in advance the penalty to be imposed for a particular crime. And the force of this conclusion will become more manifest by considering that nowhere except sporadically was any objection made to the practice by the prosecuting officers of the United States, who, indeed, it is said, not infrequently invoked its exercise. Albeit this is the case, we can see no reason for saying that we may now hold that the right exists to continue a practice which is inconsistent with the Constitution, since its exercise, in the very nature of things, amounts to a refusal by the judicial power to perform a duty resting upon it, and, as a consequence thereof, to an interference with both the legislative and executive authority as fixed by the Constitution. The fact that it is said in argument that many persons, exceeding two thousand, are now at large who otherwise would be imprisoned as the result of the exertion of the power in the past, and that misery and anguish and miscarriage of justice may come to many innocent persons by now declaring the practice illegal, presents a grave situation. But we are admonished that no authority exists to cure wrongs resulting from a violation of the Constitution in the past, however meritorious may have been the motive giving rise to it, by sanctioning a disregard of that instrument in the future. On the contrary, so far as wrong resulting from an attempt to do away with the consequences of the mistaken exercise of the power in the past is concerned, complete remedy may be afforded by the exertion of the pardoning power; and, so far as the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet, by the exercise of an enlarged but wise discretion, the infinite variations which may be presented to them for judgment, recourse must be had to Congress, whose legislative power on the subject is, in the very nature of things, adequately complete. While the conclusions just stated inevitably exact that the rule which is before us be made absolute and that the mandamus issue, nevertheless we are of opinion that the exceptional conditions which we have described require that we exercise that reasonable discretion with which we are vested to temporarily suspend the issue of the writ so as to afford ample time for executive clemency or such other action as may be required to meet the situation. And for this purpose the issue of the writ will be stayed until the end of this term, unless the United States otherwise requests, when it will go as a matter of course. Rule made absolute. (212 U. S. 272) LONG SAULT DEVELOPMENT V. I IN ERROR to the Supreme Court of the State of New York in and for the County of Albany, in that state, to review a judg ment entered pursuant to the mandate of the Court of Appeals, which affirmed a judgment of the Appellate Division of the Supreme Court for the Third Department, affirming orders of the Supreme Court at a Special Term, denying the application of a corporation for a writ of mandamus to compel the treasurer of the state to recognize the validity of the statute incorporating such corporation. Dismissed for want of jurisdiction. See same case below, in appellate division, 158 App. Div. 398, 143 N. Y. Supp. 454; in court of appeals, 212 N. Y. 1, 105 N. E. 849, Ann. Cas. 1915D, 56. The facts are stated in the opinion. Messrs. Henry W. Taft and Francis Sims McGrath for plaintiff in error. Messrs. Merton E. Lewis, C. T. Dawes, and Mr. E. E. Woodbury, Attorney General of New York, for defendant in error. Mr. Justice Clarke delivered the opinion COM- of the court: HOMER D. CALL (as Successor of John J. A decision of the highest court of the state refusing to recognize the existence of alleged property rights of the Long Sault Development Company in the bed and waters of the St. Lawrence river, purporting to have been granted by N. Y. Laws 1907, chap. 355, is not reviewable in the Federal Supreme Court on the theory that contract obligations were impaired by the effect given by the state court to the repealing act (N. Y. Laws 1913, chap. 452), where such decision was based upon the ground that irrespective of, and without reference to, the subsequent repealing legislation, the original grant was an unconstitutional attempt by the state to bargain away lands under navigable waters to a private corporation agreeing to maintain navigation thereover "in as good condition at present," thereby parting with its power to improve such navigation, and in effect abdicating the trust upon which the state held control over the river as navigable water. as [Ed. Note.-For other cases, see Courts, Cent. Dig. 1055; Dec. Dig. 394(9).] [No. 49.] Argued April 14 and 17, 1916. Reargued 1916. This proceeding was commenced in the supreme court of New York by the Long Sault Development Company, hereinafter called the plaintiff, for the purpose of testing the constitutionality of an act of the legislature of that state, passed in 1907, to incorporate the plaintiff and to grant to it important rights in the bed of, and with respect to the use of the waters of, the St. Lawrence river. Laws of 1907, chap. 355. The case is now in this court on the claim that this Act of 1907 is a valid law, and that the property rights springing from the grants therein and the acceptance of them by the plaintiff were impaired by a later act, passed in 1913, purporting to repeal the Act of 1907, and by the effect given to this later act by the decision of the court of appeals, rendered in June, 1914. The title of the Act of 1907 indicates the comprehensive character of the grants which the legislature attempted to make by it. It reads as follows: "An Act to Incorpo rate the Long Sault Development Company, and to Authorize Said Company to Con struct and Maintain Dams, Canals, Powerhouses, and Locks at or near Long Sault Island, for the Purpose of Improving the Navigation of the St. Lawrence River and Developing Power from the Waters Thereof, and to Construct and Maintain a Bridge, and Carry on the Manufacture of Commodities." The act proceeds, first, to incorporate the Long Sault Development Company, giving it perpetual corporate existence, and then in terms to authorize it to construct, main For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |