At tlie 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, executive, and tbe judicial — are the agents of the people in their respective spheres.”
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-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 inno■cent 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 language is an inhibition against the Legislature exercising the pardoning and amnesty powers attempted to be exercised by the Legislature, m 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 illusti’ate: 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 justices 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 Grovernor, 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 pardon and amnesty, before conviction, is not vésted 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 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.
"W hile it may be conceded that tlie 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 irffhe President by the Constitution, that Congress bad the power to confer it on him. The federal government is composed of three branches, just like the State governments. No one of these branches of government are permitted to exercise the powers belonging to another, any more than they are in a State government; and if the pardoning power is peculiarly an executive function, it is not at all probable that Chief Justice Chase would have made the remark he did, in the United States v. Paddleford, 9 Wall., 542.
So far as our knowledge and research extends, the question as to whether the Legislature has the power of pardon or amnesty before conviction, has never been submitted to any •court acting under a similar constitutional prevision to that of this State, save in the State of Tennessee. The Constitution of Tennessee, on the pardoning power, declares that, “He (the Governor) shall have the power to grant reprieves and pardons, after conviction, except in cases of impeachment.” Andrew Fleming was indicted for retailing liquors in violation of the act of 1838; pending the prosecution, and before conviction, the Legislature passed an act by which, under certain restrictions, it became' lawful to retail spirituous liquors, and at the same session, and subsequent to the passage of the act legalizing the sale of spirituous liquors, it was resolved by the Legislature that “no fine, forfeiture or imprisonment should be imposed or recovered for the offense of tippling, and that all causes pending in the courts should be dismissed, wherein such an offense was charged.” The defendant (Fleming) had no knowledge of the passage of the resolution, and was tried and convicted of the offense charged, and fined. Before the fine was collected, the passage of the resolution became known to him, and he asked that the judgment against him might be vacated. It will be borne in mind, that the defendant, in the case just cited, had suffered a conviction, and had not plead the act of remission. This being true, he stood before the court in the light of one who had waived his pardon, and asked a judgment at the hands of his peers. The Constitution of Tennessee places the power of pardon, after conviction, in the hands of the Governor. Fleming had been convicted, it follows, therefore, the action of the court in extending to Fleming the benefit of the resolution, after conviction, was an invasion of the executive duties.
If Nichols had waived the provisions of the act of March 1, 1867, as he had a right to do, for a pardon need not be relied on unless the defendant so elects, and had suffered a conviction, he would not then be allowed to go back and plead an act of pardon or amnesty for the purpose of vacating the judgment. To tolerate such a practice, even if an act of the Legislature authorized it, would be an invasion not only of the executive functions, but those of the judiciary.
Our attention has been directed to certain rulings in the States of Alabama and Missouri, in which it is strongly intimated that the pardoning power is an executive function. In order to show that the opinions of the Supreme Courts of those States are not applicable to a Constitution like ours, it is only necessary to state that there is no similarity between them. The Constitution of Arkansas is as follows:
“In all criminal and penal cases, except those of treason and impeachment, he (the Governor) shall have power to grant reprieves and pardons, and remit fines and forfeitures, under such rules and regulations as may be prescribed by law.”
The Constitution of Missouri, on the subject of pardons, reads as follows:
“The Governor shall have power to remit fines and forfeitures, and except in cases of impeachment, to grant reprieves and pardons.”
It will be observed, there is no limitation in the Constitutions of Alabama or Missouri, to the exercise of the pardoning power to cases, after conviction. The language used amounts to an absolute grant of all the pardoning power of the State to the executive, and therefore is an inhibition against the legislative branch interfering with it. The Governor of Alabama exercises the power of pardon before conviction, and where his pardons have been pleaded, the prisoner has invariably been discharged.
No Governor of the State of Arkansas ever attempted to exercise the power of pardon before conviction, and if he had, no conrt of the State would have recognized it. The idea advanced by the Supreme Court of Tennessee, that the courts and prosecuting attorney have a vested right to a conviction, under a criminal statute that may have been violated, is not founded in law or reason, because the Legislature is the branch of government that declares what acts shall be criminal and what penalty shall be inflicted. While it is true that the Legislature cannot affix a greater penalty to crime than was affixed thereto at the time of its commission, no one has ever seriously doubted the right or power of the Legislature to lessen the punishment or remit it altogether, when such remission did not infringe upon the exercise of some right conferred on some other department of the government by the terms of the Constitution.
This act of pardon and amnesty was passed in March, of 1867, and related to offenses committed between the 6th of May, 1861, and July 4, 1865, and no indictment was found against Nichols until March, of 1869. The question presented in this case is not like the cases presented in either Tennessee, Alabama or Missouri. In the cases passed upon by the Supreme Courts of those States, the action of the Legislature was directed toward the control of cases pending in the courts at the time of the passage of the law. At the time of the passage of the law, there was no case pending in the courts of this State against Nichols, nor was there until two years afterwards. If Nichols had been indicted before the passage of the act of March, 1867, and had pleaded the act, and the question had come here upon such a state of facts, a very different question would have been presented to this court than the one now before it. Such a case would have presented the questions discussed in Missouri and Tennessee; but in the case at bar, the action of the Legislature in no manner undertook to control or dismiss a case in court. The plea of interfering with the administration of justice in the courts, cannot be set up in this case, because the interference, it interference it is, took place before the jurisdiction of the court attached. The plea of Nichols shows that he accepted the pardon tendered him by the Legislature, and the rule is that, where the pardon has been accepted, no subsequent action of the executive or Legislature can revoke it.
The disposition of this question does not necessarily involve a discussion of the second section of the act of March 1, 1867, or cases arising thereunder. It will be time to discuss the constitutionality or unconstitutionality of that section when a case is presented, and until that time we refrain from any expression of opinion.
Section 16, of article 15, of the Constitution of 1868, declares-that “all laws in this State, not in conflict with this Constitution, shall remain in full force until otherwise provided by the General Assembly,” etc. The act of March 1, 1867, is not in -conflict with the present Constitution.
We are therefore of opinion that the circuit court of Pulaski county did not err in overruling the demurrer and discharging the appellee.
Judgment affirmed.