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TERM, 1870.]

The State v. Nichols.

Appeal from Pulaski Circuit Court.

HON. WM. STORY, Judge 2d Judicial Circuit, presiding.

Montgomery, Attorney General, for appellant.

Farr & Fletcher, Garland & Nash, Gallagher & Newton, for appellee.

MCCLURE, J.

At the March term of the Pulaski circuit court, for the year 1869, the grand jury found a true bill of indictment against Nichols, for the murder of one Charles Wood, on the 10th of July, 1864.

At the May term, 1869, Nichols filed a plea, wherein he sets up "that the killing, for which he is indicted, occurred between the 6th of May, 1861, and the 4th day of July, 1865, and that he was fully and freely pardoned of said supposed offense by an act of the General Assembly of the State of Arkansas, entitled "An act of pardon and amnesty," passed March 1, 1867," etc.

To this plea the State filed a demurrer, which was overruled by the court, and, the State declining to proceed further with the prosecution, the defendant was discharged. From this judgment the State appealed.

The only question presented by the record is, whether the act of pardon and amnesty, passed March 1, 1867, is, in fact, a pardon and amnesty. In other words, had the Legislature of 1867, assembled under the Constitution of 1864, power to pardon and amnesty citizens of the State who were liable to be charged with crime?

"Our government," says Judge PARSONS, "is founded on principles not known to the laws of any other country. The sovereignty of the commonwealth remains in the people. The several departments of the government--the legislative, execu

The State v. Nichols.

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tive, and the judicial-are the agents of the people in their respective spheres.'

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The language quoted above, from Judge PARSONS, no doubt, was used for the purpose of directing the mind of counsel to the fact that our form of government, so far as the exercise of certain powers is concerned, is not analagous or similar to any monarchial form of government, and that a power exercised by a monarch does not necessarily prove that such powers belong to the Executive of a State.

In a republican form of government the people select delegates to form a fundamental law for the government and control of such persons as may be called to exercise the duties prescribed. To use the expression of another, they build a capitol, erect its pillars and its walls, surround it with bulwarks, and assign to each department its various duties. This done, the members of a constitutional convention disperse; the people send the officers who are to take charge of the various departments, and the three branches represent the sovereignty of the State.

The theory of all monarchial forms of government is, that the monarch, or reigning sovereign, rules by "divine right," and that he is the depository of all supreme power-that whatever of liberty the people possess or enjoy, is a gracious grant on the part of the sovereign. Under such a form of government, the power to pardon and remit fines and forfeitures is a dispensing power of the sovereign; a crime in such a country is not against the government, but against the king. With us, the theory of government is different. If a man commits a crime in this State he is indicted for having offended, not against the executive, the legislative or judicial branches of the government, but for having offended "against the peace and dignity of the State of Arkansas."

In a republican form of government, such as exists in this country, what belonged to one branch of government under a monarchial form, is lodged in three different departments. Lieber, in his second volume, 147 on "civil liberty and self

TERM, 1870.]

The State v. Nichols.

government," says: "The executive stands, if any one visibly does, in the place of the monarchs of other nations, and that we forget the monarch had the pardoning power, not because he is the chief executive, but because he was considered the sovereign; while, with us, the Governor or President has but a delegated power and limited sphere of action, which by no means implies that we must necessarily or naturally delegate, along with the executive power, also the pardoning power."

From this it would seem that the pardoning power is not naturally or necessarily an executive function. The Constitution of the United States places but few prohibitions upon the States, as to what the Constitution of the State shall contain. The Constitution of a State must be republican in form. It must not provide for titles of nobility, nor violate the obligation of contracts, nor attaint persons of crime, nor provide ex post facto laws for the punishment of acts which were innocent when committed, nor contain any other provisions which would, in effect, amount to the exercise of any power expressly or impliedly prohibited to the States by the Constitution of the United States. So long as the people do not infringe upon the power already delegated to the general government, they are fully authorized to deposit power in such branches as to them may seem best. To illustrate: They had the right to withhold all pardoning power from any one of the three branches; or, on the other hand, they had the right to vest the pardoning power in either the legislative or judicial branches of the government. The Executive no more represents the sovereignty of the State than either one of the other branches of the State government. The pardoning power no more vests in the Governor, by virtue of his position, than it does in the judicial branch of the government, when the Constitution is silent.

The Constitution of 1864, on the subject of the pardoning power of the Governor, says: "In all criminal and penal cases, except those of treason and impeachment, he shall have power to grant pardons after conviction, and remit fines and forfeitures," etc. It is urged, on behalf of the State, that this lan

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guage is an inhibition against the Legislature exercising the pardoning and amnesty powers attempted to be exercised by the Legislature, in the act of March 1, 1867, and, therefore, unconstitutional.

There is a plain rule of construction running through all the books, and is as familiar to the profession as the common law itself, that declares where the language employed is inhibitory, it is a denial of power to the extent of the inhibition. To illustrate: The Constitution of this State declares: "In criminal cases the jurisdiction of justices of the peace shall extend to all matters less than felony for final determintion and judgment." It was insisted, in this court, that this language conferred exclusive jurisdiction on the courts of jus tices of the peace; but, in Tucker, ex parte, we held this language was no inhibition on the Legislature from conferring a concurrent jurisdiction over the same subject matter to the circuit court.

The inhibition in the Constitution of 1864 limits the right of pardon, in the Governor, to cases in which there has been a conviction at law. Now, the question arises, does this limitation of the exercise of the pardoning power to cases after conviction, inhibit the Legislature from passing an act of pardon and amnesty, as to such persons who have not suffered conviction? The counsel for the State insist that the power of par don and amnesty, before conviction, is not vested in any one of the branches of government, and that convictions must follow before the pardoning power can be exercised at all.

There is a broad difference as to the rule of construction applicable to the Constitution of the United States and that of a State. The government of the United States is one of enumerated and limited powers, while the government of the State is possessed of all the general powers of legislation. In construing a law of the United States, we look to the Constitution to see if the power is granted; but, in construing the Constitution of the State, we look whether the Legislature is prohibited by express words, or by implication. Congress can

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pass no laws save such as the Constitution authorizes in express terms, or necessary implication, while the Legislature is constrained by no bounds, save such as the Constitution of the State and United States have thrown around it.

While it may be conceded that the pardoning, after conviction, is, by the Constitution, declared to be one of the duties of the executive, yet the exercise of the same power by the Legislature, before conviction, cannot be construed, in our opinion, to be an invasion of the executive department. We have already intimated that the executive of a State did not inure to any of the powers exercised by a monarch, by "divine right," and that his power and authority was measured by the Constitution alone. It is not urged that the executive has any pardoning power before conviction, and if he has not, we are unable to see wherein his province has been invaded.

It is urged, however, that the pardoning power is peculiarly an executive function, and that any exercise of such power by the Legislature is impliedly prohibited. The power to pardon partakes more of the nature of a dispensing than an executive power. The chief duty of the executive is to see that the laws are executed, and, where the power to dispense with the execution of the law is given him, it should not be extended by implication. The power of dispensing with the law and its penalties, partakes more of a legislative than of an executive character.

The President of the United States exercises the pardoning power, both before and after, conviction; but this is not by reason of it being peculiarly an executive function, but because the Constitution of the United States, in plain and unqualified language, has conferred the sole power of pardoning on him. In a question involving the discussion of the pardoning power of the President, Chief Justice CHASE says that the President. had the pardoning power without any act of Congress, but that if he did not, the act of Congress would have been sufficient to have given him the power-thus conveying the impression that if the pardoning power was not vested in the

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