pardon. It was said afterwards in debate that this was intended to settle any doubt concerning the governor's power. It will be observed that the constitutional provision is a substantial transcript of the statutory provision included in the act of 1794.

Under the statute authorizing the governor to commute a sentence for good behavior, he may, on granting such commutation, impose a condition that, if the offender is again convicted during the term for which he was originally sentenced, he shall suffer the full penalty thereby imposed. Re Whalen (1892) 47 N. Y. S. R. 313, 19 N. Y. Supp. 915.

The effect of a pardon under peculiar conditions on the competency of a witness was considered in People v. Pease (1803) 3 Johns. Cas. 333. The pardon contained a proviso that it should not be "construed to remove the legal disabilites which attach to the offender on his conviction and condemnation." The proviso was rejected as incongruous. "The disabilities form no part of

the judgment against a convict, but are the legal marks of infamy which it fixes upon him. When, therefore, the judgment is pardoned, the legal infamy flowing from it is equally disposed of by the pardon." The judgment cannot be released and the consequential effects thereof remain.

Judgment, how affected.-A pardon and restoration to citizenship have no retroactive effect upon a judgment of conviction which remains unreversed and has not been set aside. "The effect of a pardon is to relieve the offender of all unenforced penalties annexed to the conviction; but what the party convicted has already endured or paid the pardon does not restore. When it takes effect it puts an end to any further infliction of punishment, but has no operation upon the portion of the sentence already executed." A pardon is granted "not as a matter of right, but of grace. . . A party is acquitted on the ground of innocence; he is pardoned through favor." Roberts v. State (1899) 160 N. Y. 217, 54 N. E. 678.

Parole. The provisions of the prison act of 1889, chap. 382, which authorized the board thereby created to parole or discharge persons sentenced to certain penal institutions, did not interfere with the governor's pardoning power. A release under the law is an additional favor, of which the offender cannot complain. "The prison officials whose duty it is to observe the daily life, study the character and traits, and investigate the life record of the prisoner" are especially qualified to decide questions relating to the propriety of his release. The governor's pardoning power, vested in him by the

Constitution, is recognized by the act itself. People ex rel. Clark v. Sing Sing Prison (1902) 39 Misc. 113, 78 N. Y. Supp. 907.

Procedure.-In Re Edymoin (1853) 8 How. Pr. 478, it was held in substance that a statutory provision requiring notice of the application of the pardon to be given to the district attorney was directory, and that the governor had jurisdiction to grant the pardon without a strict compliance with the statute.

Reprieve.-"A reprieve by the governor to a day certain, granted in a capital case, authorizes the execution of sentence on the day on which the reprieve terminates, and . . . it is not necessary that the prisoner should be brought before the court to have the time of execution fixed. . . . The distinction between a reprieve and a suspension of sentence, although the words are sometimes used interchangeably, is that a reprieve postpones the execution of the sentence to a day certain, whereas the suspension is for an indefinite time." The right to execute the sentence on the day fixed by the reprieve inheres in the power to grant the reprieve. Re Buchanan (1895) 146 N. Y. 264, 40 N. E. 883, citing People v. Enoch (1834) 13 Wend. 160, 27 Am. Dec. 197, where the same rule is declared as to the effect of a respite of sentence.*

Suspension of sentence.-The amendment of the Penal Code in 1893, chap. 279, authorizing the suspension of sentence in certain cases, does not encroach upon the governor's pardoning power. "The power to suspend sentence and the power to grant reprieves and pardons, as understood when the Constitution was adopted, are totally distinct and different in their origin and nature. The former was always a part of the judicial power. The latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court. . . . A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offense. It removes the penalties and disabilities and restores him to all his civil rights." The Constitution expresses "the authority formerly exercised by the English Crown, or by its representatives in the colonies." People ex rel. Forsyth v. Court of Sessions (1894) 141 N. Y. 288, 23 L. R. A. 856, 36 N. E. 386.

The act for the establishment of a House of Refuge for Women (1881, chap. 187, as amended in 1887, chap. 17) did not interfere with the governor's pardoning power. People ex rel. Duntz v. Coon (1893) 67 Hun, 523, 22 N. Y. Supp. 865.

*See Miller's Case (1828) 9 Cow. 730, for a discussion (without result) between Gov. De Witt Clinton and Judge Ogden Edwards as to the power of the oyer and terminer to grant a reprieve.

EXTRADITION.

Another aspect of the governor's power in relation to crimes is presented under the provision of the Federal Constitution (art. 4, 8 2, subd. 2) requiring the surrender of fugitives from justice on the demand of the executive of the state in which the offense was committed, and Congress has imposed on the executive of the state to which the person has fled the duty to cause his arrest and surrender, and the New York Code of Criminal Procedure prescribes regulations concerning the practice in such cases.

In People ex rel. Corkran v. Hyatt (1902) 172 N. Y. 177, 60 L. R. A. 774, 92 Am. St. Rep. 706, 64 N. E. 825, affirmed in (1903) 188 U. S. 691, 47 L. ed. 657, 23 Sup. Ct. Rep. 456, the court made some observations on this subject which may properly be quoted here. Extradition between the states of the Union is not "governed by international law, but depends solely on the provisions of the Constitution of the United States and the act of Congress made from it. The power of a state to punish a fugitive from justice after obtaining custody of his person depends in no way on how that custody was obtained. Even if the offender has been kidnapped in another state and brought within the territory of the prosecuting state, that fact does not affect the jurisdiction of the latter to punish him for the offense. . . . The condition of a citizen of one state surrendered to another for criminal prosecution has not the safeguards which exist in international extradition, for the surrendering state is without any standing to intervene in his behalf, however much its process may be abused. Therefore, it necessarily follows, that no person can or should be extradited from one state to another unless the case falls within the constitutional provision, and that the power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the states. . . To be a fugitive from justice a person must have been corporeally present in the demanding state at the time of the commission of the alleged crime. No law gives a person sought to be extradited the right to a hearing before the governor, or to submit evidence in his behalf. Whatever in these respects may be accorded by the governor to the accused is a matter of favor, not of right." A person cannot be extradited without proof that he was personally present in the demanding state at the time the alleged offense was committed; his constructive presence therein is not sufficient. The court also held that the governor's action in an extradition case may be reviewed by the courts on a writ of habeas corpus, citing People

ex rel. Lawrence v. Brady (1874) 56 N. Y. 182; People ex rel Draper v. Pinkerton (1879) 77 N. Y. 245; People ex rel. Jourdan v. Donohue (1881) 84 N. Y. 438.

§ 6. [When lieutenant governor to act as governor.] -In case of the impeachment of the governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant governor for the residue of the term, or until the disability shall cease. But when the governor shall, with the consent of the legislature, be out of the state, in time of war, at the head of a military force thereof, he shall continue commander in chief of all the military force of the state.

[Const. 1777, art. 20; 1821, art. 3, § 6; 1846, art. 4, § 6.]

There has been little interruption in the regular gubernatorial succession. De Witt Clinton, whose death occurred February 11, 1828, is the only governor who has died in office. Governor Daniel D. Tompkins vacated the office in 1817, on his accession to the vice presidency of the United States. Governor Martin Van Buren, whose term began January 1, 1829, resigned to become secretary of state in President Jackson's cabinet, and Grover Cleveland, who, in November, 1884, was elected president of the United States, resigned a few weeks before his inauguration in March, 1885. The lieutenant governors succeeded to the office in each of these cases.

The first instance occurred in 1817 when, as already stated, Governor Tompkins resigned to become vice president of the United States. On the presentation of his letter of resignation to the senate on the 24th of February, 1817, John Tayler, lieutenant governor and president of the senate, announced that it thereupon became his duty

to retire from the presidency of the senate to assume the duties of the executive office. The first Constitution, which was then in force, provided that in case of such a vacancy "the lieutenant governor shall exercise all the power and authority appertaining to the office of governor, until another be chosen." De Witt Clinton was chosen governor at the regular election in the following April, and assumed the duties of the office on the 1st of July, 1817. Mr. Tayler was re-elected lieutenant governor, thus serving a little more than four months as governor. His status was evidently regarded as that of acting governor. The senate and assembly records describe him as lieutenant governor, and he appears also in the same capacity in the records of the Council of Revision and the Council of Appointment, of which he became ex officio the presiding officer. Communications from him to the legislature, and also bills passed by that body and approved by the Council of Revision, were signed without the addition of any official title. The second Constitution, 1821, changed the rule relating to the incumbency of the lieutenant governor as acting governor, and provided that, in case of a vacancy in the office of governor, the "powers and duties of the office shall devolve upon the lieutenant governor, for the residue of the term,❞—no provision being made for filling a vacancy in the office of governor as under the first Constitution. Governor De Witt Clinton died on the 11th of February, 1828, and Nathaniel Pitcher, the lieutenant governor, succeeded to the executive office. The senate journal describes him as lieutenant governor, and the assembly journal as acting governor. The Council of Revision and the Council of Appointment were abolished by the second Constitution. Mr. Pitcher's approval of legislative bills was manifested by his signature only, without any official title.