dissenting says:
Upon a most careful consideration of this ease, I have failed to agree in opinion with the majority of the court.
The Legislatureof this State, on the first of March, 1867,passed a pardon and amnesty act, in which it is provided, “That full and free pardon and amnesty be, and the same are hereby granted to all persons who at any time, after the sixth day of May, A. D. 1861, and before the fourth day of July, A. D. 1865, may have committed any crime or misdemeanor against the State of Arkansas — rape only excepted — and shall not have been convicted thereof before the passage of this act.”
It is not merely the purport or effect of this act that makes it a legislative act of pardon, but the title and the body of the act declare that it is an act of pardon, no pretense that it is a repeal of the criminal law or the jurisdiction of the courts.
We have, then, but one question : Is the pardoning power, •under our form of government, committed to legislative action? We think not.
We lay down, as one of the fundamental principles of our government, that the powers of the three departments are to be exercised by different and distinct classes of persons. Our present, as well as former Constitutions, ordains that the powers of government are divided into three departments — the legislative, executive and judicial — and that no person, nor collection of persons, belonging to one department, shall exercise any of the power’s belonging to another, except in the cases •expressly provided in the Constitution.
The majority of the court, in argument, assume that there is a sovereignty attached to the legislative department that does not belong to the executive or judicial.
We admit its wider range and greater diversity of power, but not its claim to sovereignty. The sovereignty of the State is in the people They have assembled in convention and distributed the sovereignty between three departments of government' — legislative, executive and judicial — conferring upon each all the powers necessary to the full execution and mainte. nance of its respective department, and to maintain this inde-p endence and distinctiveness, have declared that “no person or collection of persons, belonging to one department, shall exercise anj- of the powers belonging to either of the others.”
Then, we hold that each of these departments received from the people that portion of sovereignty necessary to the discharge of all the functions of its respective department, and no more; and, consequently, each is sovereign within its own sphere — the equal, but not the supei’ior, of the other co-ordinate powers of the State; and, as quoted by tte majority, from Mr. Parsons, “Each is tbe agent of the people, in their respective spheres.”
And, to use a further quotation of theirs: “ The people in convention, assign to each department its various duties; this done, the members of a convention, disperse, and 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 legislative department has more extended jurisdiction, and greater diversity of action; its province is to enact rules, or laws, for the government and well-being of society, in its varied wants, innumerable changes, pursuits and improvements, the right to make laws upon all subjects, and to any purport and effect, not restricted by constitutional limitations; but this is not a grant of sovereignty to that department, except over the wide field assigned to it. •
"We do not concur in the opinion that the pardoning power is more legislative than executive, and the weight of authority, hereinafter referred to, if not for other reasons, would incline us to a contrary conclusion.
The majority say that the Constitution of the United States has, in plain and unqualified language, conferred upon the President the sole power of pardoning. This is the ground we assume, and we propose to show that such has been the ruling of the Supreme Court of the United States, and other high authority. Yet the language in the United States Constitution is, that “ he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” No exclusive words are used to confer “the sole poiver” on him alone; and there is one limit to his power — that is, in case of impeachment. The State Constitution has three limitations instead of one — the pardon shall not be before conviction, nor in impeachment or treason. The language of our Constitution is, that “in all criminal and penal cases, except in those of treason and impeachment, he shall have power to grant pardons, after conviction, and remit fines and forfeitures, under such, rules and regulations as shall be prescribed by law” — Article 6, section 11, Constitution of 1864— words no less definite and exclusive than the former, in the United States Constitution, as to the power conferred.
The majority of the court say if Nichols had been indicted before the passage of the act of March, 1867, and had then pleaded the act, and brought his case here, a very different question would have been presented to this court, and that such were the cases in Missouri and Tennessee. In our view, the main question is the same. It is not whether legislative action interferes with causes in court, but whether the Legislature can pardon.offenders, and discharge whole classes of individuals who have violated the criminal laws of the State. To attempt to shift the argument upon technical ties of pleading on time, etc., is but playing with the shadow rather than grappling with the reality before the court.
The question is the power of the Legislature to pardon a criminal after he has violated the penal statutes of the State, and became liable to be convicted and executed for such violation of law.
I submit, as my opinion, that the Constitutions of Missouri and Alabama, omitting the words, “after conviction,” in the clause conferring the pardoning power upon the executive, in no way affect the question at issue. The Constitution of Tennessee is conceded to be precisely like ours.
In all these Constitutions there is a pardoning power conferred upon the executive, and there is also a clause that no two departments shall exercise the same power. Does this not make it an exclusive power, as so often held in the Supreme Court of the United States? Can the Legislature exercise a power that the Constitution has made executive, even if not declared exclusively so in the particular clause conferring the power?
Before reciting the authorities relied on, I will allude to one point not noticed by the court. This pardon act, of March Í, 1867, was repealed by act of July 28, 1868. If tbe Legislature of 1867 bad power to pass a law of pardon, had not the Legislature of 1868 power to repeal that pardon act? And, when that law was repealed, did not the law r^tnain as if the law of 1867 had never passed? as the pardon law did not attempt to repeal any former law.
Bishop, in his American Criminal law, vol. 1, 216, says: “'Where the old law having been repealed, and the Legislature, by subsequent act, authorize proceedings, as by repealing the repealing statute, in every such case, though the right to prosecute should have once lapsed, a conviction may be had.”
If this is stronger than the rule with us, may it not apply when the act of 1867 was a mere tender of pardon that had to be accepted, and which could not have been accepted until its repeal?
An offense was committed in Pennsylvania. Under an act of 1827, the Supreme Court of that State said : “In this case the offense was committed before the act of 1882, and the eon. viction thereon was had after the act of 1838, and so the offense was not committed, nor was the conviction had, whilst the act of 1832 was in force. The court are all of opinion that the prisoner is liable to an additional punishment under the statute of 1827, ” etc. Commonwealth v. Scott, 21 Pick. 492; and Com. v. Gitchell, 16 Pick. 352.
If the pardon act was a valid law in 1867, as such law it was repealed in 1868. When Nichols was indicted, in 1869, there was no law of pardon to plead. The act charged was murder, when committed, and murder when the indictment was found; and if the act of 1867 did suspend prosecutions^ the case is stronger against the accused than those above referred to. If that act was not an ordinary law, it is an argument against legislative power, and tends to show that that power is exclusively in the executive, where Chief Justice Marshall says it has been, time immemorial. But we pass on to elucidate the main question; and our views not being indorsed by the majority of the court, I may be allowed to quote at some length from the decisions of courts whose judges were abler than myself, and who maturely considered this grave question.
In the case of the State v. Gloss, 25 Mo. 293, the Supreme Court of that State say: “The powers of the General Assembly are not unlimited. All the departments of our government are confined in their operations; they have prescribed limits which they cannot transcend. The union of the legislative, executive and judicial functions of government in the same body, as shown by experience, had been productive of such injustice, cruelty and oppression, that the framers of our Constitution, as a safe-guard against those evils, ordained that the powers of government should be divided into three distinct departments, and that no person charged with the exercise of powers, properly belongingto one of these-departments, should exercise any of the powers properly belonging to either of the others.”
They say, of the pardoning power: “All unite in pronouncing it an executive function. So the framers of our Constitution thought, and accordingly vested the power of pardoning in the chief executive ofiieer of the State.” They continue, in speaking of the act, making it the duty of the circuit court judge to dismiss prosecutions commenced under a former law, (the operation of the act is confined to the release of individuals from prosecution,) who stand indicted for ofienses: “ The justice or propriety of the act has nothing to do with its constitutionality. We are not to presume that the Governor, under suitable circumstances, will not exercise the power with which he has been clothed by the Constitution. He is the sole judge of the propriety of granting a pardon.” See, also, State v. Maberry, 29 Mo. 301.
In the case of Haley v. Clark, 26 Ala. 442; the Supreme Court of Alabama say: “The appellants claim under acts of 1849 and 1850, p. 452, by the first section of which it is enacted that the treasurer of Marion county be, and he is hereby, directed to pay Allen Haley, John M. Frederick, John T. Sanders and William "Warren, the securities of John Douglass, late clerk of the circuit court of Marion county, the sum of five hundred dollars, that being the amount of a fine they have paid for said Douglass, in consequence of said Douglass having failed to comply with the requisitions of the second section of the act of 1854,” etc.
“The principal question is, whether this act is unconstitutional. By article 4, section 11, of the Constitution of Alabama, the power to remit fines and forfeitures is given to the ('¡overnor; and by the second article, the powers of the government are divided into three distinct departments — the legislative, executive and judicial — and no one of these departments, or person belonging thereto, can exercise any power properly belonging to either of the others, unless expressly directed or permitted by the Constitution. To sustain this position would be to allow one department of the government to trench upon the powers of another, and to defeat the purpose which the Constitution contemplated in confining the pardoning power to one branch of the government, by permitting it to be indirectly exercised by another; the act was void and the judgment correct.”
It is urged, as legislative authority, that the Parliament of Grreat Britain grants pardons. That is true, but that government differs widely from ours. There is no Constitution above Parliament, no power restricting it. Parliament can make laws, determine of their violation, and order them carried into effect. She is not limited to any one function or class of functions of government; and so far as the subjects of that realm are concerned, she does what she wills to do, and she is amenable to no superior; and, unlike a Congress or State Legislature, in this government, who dare not pass constitutional limits.
The Supreme Court of the United States, through Chief Justice MARSHALL, in the case of the United States v. Wilson, 7 Pet., 159, says: “The Constitution gives to the President, in general terms, the power to grant reprieves and pardons for offenses against the United States. As this power had been exercised from time immemorial by the executive of that nation, whose language is our language, and to whose judicial institutions ours bear a close resemblance. * * * A pai'-don is an act of grace, proceeding from, the power entrusted with the execution of the laws, which exempts the individual from the punishment the law inflicts for a crime he has committed.”
“It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended,” etc.
Judge TaNey, who was then acting as Attorney General, said: “ The pardoning power, under the Constitution, is the executive power.” See also, Opinions of United States Attorney Generals, vol. 6, pp. 20, 39 and 488, and vol. 10, p. 455.
In the case of Garland, ex parte, 4 Wal., 380, the Supreme Court say: “The pardoning power of the President is not subject to legislative control. Congress can neither limit the eflect of his pardon, nor exclude from its exercise any class of offenders,” etc.
Thus, under the clause of the Federal Constitution merely granting the executive the right to pardon, the Supreme Court held that the pardoning power is vested in him, and cannot be limited or controled by Congress.
We are aware that it is urged that Congress has only delegated powers, and is therefore limited strictly to the grant. On the other hand, State Legislatures are limited by their Constitutions providing that they shall not exercise any of the powers belonging to the executive or judicial departments of the government: “No person or collection of persons, being of one department, shall exercise any power belonging to either of the others,” and the source is immaterial, so there is a limitation upon legislative action.
Our own Supreme Court, in the case of Baldwin v. Scoggin, 15 Ark., 432, through Chief Justice English, said: “The framers of our Constitution have intrusted the pardoning power to the Governor,” etc. This court did not then seem to think the Legislature shared in that power.
We bold tbe Legislature can pass rules regulating executive action, just as they regulate proceedings in court, but tbe power to pardon is in tbe executive, and in tbe other case the power of rendering judgments and ordering executions is in tbe courts, and therefore excluded from tbe Legislature.
As stated by a majority of tbe court, the Legislature of Tennessee passed a law, subjecting persons to indictment and fine for retailing liquors. In 1846 the Legislature passed another act allowing persons, upon certain conditions, to retail liquors, and subsequently passed a resolution declaring that no fine or forfeiture or imprisonment should be imposed or recovered, for the offense of retailing under the former act of 1837, and that all causes pending in any of the courts for such offense should be dismissed. The circuit court vacated a judgment that had been published, and the Attorney General appealed, and the Supreme Court of that State said: “The question presented for our consideration is, whether the resolution of the Legislature, passed in 1846, is a constitutional exercise of power, and we think it is not. * * * The question reduced to simplicity is this: Can the Legislature, by resolution, direct that an individual who stands charged with crime in a court of justice, be discharged therefrom? The mere statement of the question, it seems to us, answers it, necessarily, in the negative. The powers of the State of Tennessee are vested in legislative, executive and judicial departments, each separate and distinct from the other, with their power and duties well defined by the Constitution, and by which each is kept within its appropriate sphere of action.
“The Legislature can make the law, but the courts must expound it, and execute it, with the aid of the executive, when his action may become necessary for that purpose.
“The Legislature has no power to interfere with the administration of justice, either civil or criminal, in the courts. A resolution that a criminal or class of criminals shall be discharged by the courts is then necessarily, an assumption of power not warranted. After conviction the Governor may pardon, but before conviction, the - Attorney General and the court are the only power that can discharge without acquittal, and this by nolle prosequi. We are, therefore, constrained to hold that the resolution under which these defendants claimed their discharge is void, for want of power in the Legislature to pass it.”
These courts give reasons why this legislative power is inhibited, but in each one the judgment goes to the vital question and decides that a Legislature has no power to pass an act of pardon.
A constitution or a law must be construed as a whole, and not by separate clauses, and when the constitution said' the executive shall exercise a pardoning power, if it had there stopped we could have agreed, but it further says, in effect,, no other department of the State government shall exercise any of the powers exercised by the executive. Then we say the others are excluded. So, in the case of Tucker, ex parte, if the Constitution that said justices of the peace shall have jurisdiction in cases of misdemeanors, had in some other clause said, where justices have jurisdiction no other court shall take jurisdiction, then we would have held quite differently.
But it is said, the Legislature" here pardoned before conviction and the Governor pardons after conviction. This does not change the proposition. Both are pardoning powers — the Legislature is using a pardoning power, and the Governor a pardoning power — when the Constitution declares, that the same power shall not be exercised by persons belonging to different departments of government, meaning, beyond question, that the powers of the different departments shall not be blended.
Now, it will be seen by an examination of the various cases in Missouri, Tennessee and Alabama, that those courts did not base their decisions upon the question of time, as to when the offense was committed, or whether an indictment or conviction had been had. Some of the circumstances in each case are alluded to in the arguments of the judges, but, upon the main question they move up like men conscious that they are armed witli tbe right, and declare that the Legislature has no power to pass acts of pardon, because, so far as the people have granted that power, it has been conferred upon the executive, and the same function cannot be exercised by two departments of the State government.
It seems to me that these cases are entitled to great weight, especially so, when not a single case has been cited to the contrary. I have earefully searched our voluminous library, to say nothing of the more diligent and efficient examination of thé majority of the court, and not one case can be found where any Supreme Court has sustained a law granting pardons by legislative action.
Now, I repeat, if two branches of the State government cannot exercise the same functions, and the Constitution says they shall not, and the pardoning power is a function of government, I cannot see how the executive .and Legislature can both pardon; and if the Constitution, in the clause referred to, had said the different departments of the government shall not at the same time exercise the same power, I could see some force of argument in the position of the majority ; but it does not so ordain; and, with good authority to the contrary, and none to support what seems to me a misinterpretation of our Constitution, I cannot agree.