California Law Review
Volume 27 | Issue 4
Article 1
May 1939
Legislative Pardons
Henry Weihofen
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Henry Weihofen, Legislative Pardons, 27 Cal. L. Rev. 371 (1939).
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California Law Review
Volume XXVII
MAY, 1939
Number 4
Legislative Pardons
EARLY in 1938, a bill was introduced in the California legislature
to grant a pardon to Tom Mooney, the labor leader, convicted
twenty years previously for the San Francisco Preparedness Day
bombing. The bill was passed by the lower house, but failed by one
or two votes in the senate.
While the bill was pending, the question of its constitutionality
was raised. Was it within the power of the legislature to grant a pardon by legislative act, or was the pardoning power exclusively in the
governor?
Since that time, Governor Olson has pardoned Mooney, making
further efforts to obtain a legislative pardon unnecessary. The pos-
sibility of a determination of the legislature's power in this respect
by such a test has thereby disappeared. The question remains of interest, however, not only in California, but elsewhere, for it involves
the legislative power in all states, and of Congress as well.
Off-hand, the answer seems easy. The great weight of judicial
dicta agrees that the constitutional grant of the pardoning power to
the executive is exclusive, and legislation attempting to exercise this
power would be an unconstitutional invasion of the executive power.'
Nevertheless, it is the purpose of this article to show that these dicta
are almost wholly unsupported by any direct authority, are historically untrue, politically unsound and socially a nuisance.
IUnited States v. Klein (1871) 80 U. S. (13 Wall.) 128, 147 ("to the executive alone
is entrusted the power of pardon"); Haley v. Clark (1855) 26 Ala. 439, 442; State v.
Stone (1932) 224 Ala 234, 236, 139 So. 328, 329; People v. La Buy (1918) 285 Ill. 141,
144, 120 N. E. 537, 538; Butler v. State (1884) 97 Ind. 373, 375; People v. Moore (1886)
62 Mich. 496, 500, 29 N. W. 80, 81; State v. Kirby (1910) 96 Mass. 629, 630, 51 So. 811,
812; State v. Jackson (1926) 143 Miss. 745, 754, 109 So. 724, 726; State v. Sloss (1857)
25 Mo. 291, 294; Ex parteBustillos (1920) 26 N. M. 449, 459, 194 Pac. 886, 888; Houghtaling v. Kelderhouse (N.Y. 1851) 1 Park. Cr. Rep. 241, 243; Ex parte Ridley (1910)
3 Okla. Cr. 350, 355, 106 Pac. 549, 551; Commonwealth v. Denniston (Pa. 1839) 9 Watts
142, 143; Diehl v. Rodgers (1895) 169 Pa. 316, 323, 32 Atl. 424, 426; Fite v. State (1905)
114 Tenn. 646, 655, 88 S. W. 941; Ex parte Miers (1933) 124 Tex. Cr. Rep. 592, 596, 64
S.W. (2d) 778, 780; In re Conditional Discharge of Convicts (1901) 73 Vt. 414, 420,
51 Ad. 10, 11; State v. Thompson (1917) 80 W.Va. 698, 701, 93 S.E. 810, 811.
CALIFORNIA LAW REVIEW
[Vol. 2
It is true that the constitutions of every state except Connecticut
specifically confer power to grant pardons upon the governor, either
alone or with the help of an advisory pardon board or pardon attorney, or upon a board of which-the governor is a member., In no state
does the constitution specifically grant pardoning power to the legislature. On the other hand, in no state except Rhode Island does the
constitution declare that the executive pardoning power shall be exclusive; nor even that the pardoning power shall be vested in the
governor. The usual provision is a paragraph found under that
part of the constitution dealing with the executive to the effect that
2 The governor has power to pardon without aid of any agency to help or restrain
him in six states: Co.o. CoNsT. art. IV, § 7; Ky. CONST. § 77; MISS. CONST. § 124; N.M.
CoNsT. art V, § 6; ORE. CONST. art. V, § 14, Or.x. CODE ANN. (1930) § 13-1801; VA.
CONST. § 73.
Three New England states retain the device of vesting the power in the governor
with the advice and consent of the executive council: ME. CoNsr. art. V, pt. 1, § 11,
Me. Laws 1875, c. 93; MASS. CONST. § 64, MASS. ANN. LAWS (Michie, 1932) c. 127,
§ 152; N. H. CONST. art. 52. In Rhode Island, the governor can act only with the advice
and consent of the senate: R. I. CoNsT. art. VII, 0 4 as amended.
In four states the governor is given the services of a pardon attorney or pardon
commissioner: KAN. GEN. STAT. ANN. (Corrick, 1935) § 75-3102, Kan. Laws 1919, c.
284, § 1; Md. Laws 1922, c. 29; N. C. Laws 1925, c. 29. In West Virginia no statutory
authority exists for the office of pardon attorney, but successive governors in recent times
have appointed such an officer, apparently under the general authority of the governor
to grant pardons.
Twenty-two states provide an advisory pardon board: ALA. CONST. § 124; ARIz.
CODE (Struckmeyer, 1928) §§ 5215-5222; ARx. DIG. STAT. (Pope, 1937) § 12768 et seq.;
CA. GEr. LAws act 1908, CAL. PoL. CODE § 376b, Cal. Stats. 1915, p. 465; DEL. CoNST.
art. VII, § 1; GA. CONST. § 2-2612; Ill. Laws 1897, p. 272; IND. CONST. § 150; IOWA
CODE (1935) § 3817; LA. CoNST. ANN. (Dart, 1932) art. V, § 10; Mich. Pub. Acts 1937,
no. 255; Mo. Laws 1901, p. 178; MONT. CoNsT. art. VII, § 9, MoNT. RFv. CODES ANN.
(Anderson & McFarland, 1935) § 12247; OHIO CODE ANN. (Throckmorton, 1936)
§ 2211-7; PA. CONST. art. IV, § 9; S. C. CODE (1932) § 3431 et seq.; S. D. CONST. art.
IV, § 5, S. D. Co:Nip. LAWS (1929) §§ 5310, 5311; TENN. CODE (Williams-ShannonHarsh, 1932) § 11815; TEX. CoNsT. art. IV, § II, as amended 1936; Wash. Laws 1935,
c. 114; Wis. CoNsT. art. V, § 6; WVo. CONST. art. IV, § 5. Oklahoma has both a pardon
officer and a board: Okla. Sess. Laws 1923-24, c. 44, §§ 1, 2; OXaA. STAT. (Harlow, 1931)
§ 3264 et seq. In New York the governor may request the division of parole to investigate: N. Y. CONSOL. LAWS (Cahill, 1930) c. 18, § 116. In Vermont he may have the state
probation officer investigate and may request three supreme court justices to be present
at hearings in an advisory capacity. VT. Pus. LAWS (1933) §§ 8866,8886.
Eight states vest the pardoning power in a board of which the governor is a member: FLA. CONST. art. IV, § 12; IDAHO CoNsT. art. IV, § 7; MINN. CONST. art V, § 4, as
amended, MnNvr. STAT. (Mason, 1927) § 10779; NEB. CONST. art. IV, § 13; Nm. Coi.
STAT. (1929) §§ 29-2602, 29-2604; NEv. CONST. § 100; N. J. CONST. art. V, par. 10; N. D.
CoNsT. § 76; UTAH CONST. art. VII, § 12, UTAH Rxv. STAT. ANN. (1933) § 67-0-1. Connecticut by statute also vests the pardoning power in such a board. CONN. GEN. STAT.
(1930) §§ 1997-2004; ibid. (Supp. 1935) § 787c.
1939]
LEGISLATIVE PARDONS
the governor shall have power to grant reprieves and pardons. There
is nothing in the wording of the constitution of any state to indicate
that this grant is meant to be exclusive, or that the legislature is
prohibited from exercising a similar power.
Historically, pardons have often been the subject of legislation,
both in England and in this country. General pardons or amnesties,
especially, have more usually issued from the legislature than the
executive. Indeed, the power to grant general pardons has frequently
been denied the executive. In imperial Rome, the emperor could grant
an indulgentia generalis, or beneficium generale, but in republican
Rome this power was unknown. England, the United States, and
Italy have given their chief executives the power of the Caesars, but
in France the president can grant only individual pardons, general
pardons being granted by act of Parliament. In England, although it
is recognized that the Crown and Parliament each have power to
grant pardons, in modern practice a sort of combination procedure
has grown up. Since a legislative pardon has broader legal effects in
certain respects than one granted by the Crown, when the King
wishes to grant a pardon the practice is to bring a bill before Parliament with the royal assent already given.4
In this country the question of whether the president has power
to issue a proclamation of general amnesty was the subject of sharp
dispute during and after the Civil War. The Senate Judiciary Committee concluded that the president had no such power without the
3 "Quodsi criminaliter coeptum interventu indulgentiae sopitum est ... ." CoD. JusT.
IX, 22, 9. "Ergo et si quis damnatus capite in integrum indulgentia principis sit restitutus, testamentum eius convaleicet." DIG. XXVIII, 3, 6, 12.
4An act of grace "originally proceeds from the crown .... " 1 BL. CoMM. *184.
"Macaulay, in his History of England, vol. 3, p. 442 (Butler's Philadelphia ed., 8vo.),
says: '... An act of grace is received with peculiar marks of respect, is read only once
by the Lords and once by the Commons, and must be either rejected altogether or accepted as it stands.' One of the 'peculiar marks 6f respect' with which an act of grace
is received by the Houses of Parliament, as stated by Macaulay (same vol., p. 443), is,
that each House stands up uncovered while the act of grace is read. Blackstone (Comm.,
vol. 1, p. 87) says that ...the clerk of the Parliament pronounces to the King the gratitude of the subject in Norman-French words, translated as follows :-The prelates, lords,
and commons in this present Parliament assembled, in the name of all your other subjects, most humbly thank your majesty, and pray to God to grant you in health and
wealth long to live.'" L. C. K., The Power of the Presidentto Grant a GeneralPardon
or Amnesty for Offences Against the United States (1869) 8 Am. L. REG. (N. s.) 513,522.
The granting of a general pardon under and by acts of Parliament indicate, therefore,
mostly a proceeding, which the king selected to establish the functioning of his royal
privilege on a firm ground, and in conformity with public opinion.
CALIFORNIA LAW REVIEW
[Vol. 27
authority or assent of Congress. 5 Although the power of the president to proclaim such amnesties is now conceded, it is also clear that
Congress retains a similar power. The Supreme Court of the United
States has said, "Although the Constitution vests in the President
'power to grant reprieves and pardons for offences against the United
States, except in cases of impeachment,' this power has never been
held to take from Congress the power to pass acts of general
amnesty .... ,,
In most American states, the power to grant general pardons
must reside in the legislature or be nonexistent. Forty states restrict
the governor's pardoning power to cases "after conviction."" But
general pardons are usually granted in advance of, and to prevent
prosecution or conviction. The executive power is usually restricted
in other ways also. In twenty-seven states, for example, he may not
5
The arguments in favor of this conclusion were: "(1) That the power of general
pardon by proclamation did not exist, and was not claimed by any English sovereign,
after Great Britain had a constitution and a settled jurisprudence; 'although it was
frequently exercised under and by Acts of Parliamentfrom the earliest years of the reign
of Elizabeth (1535), [sic] until after the American Revolution,' from which 'the clear
conclusion is, that under the English system of government, no power, either of amnesty
or general pardon' [sic] 'existed in the king'; and, (2) That the knowledge of these legal
terms, amnesty and pardon, and of their settled meaning and effect, must have existed
in the Constitutional Convention of 1787, and that the convention, by not using the
word amnesty in the article conferring power on the President 'to grant pardons,' must
be understood as intending not to invest him with any power to grant amnesty for offences against the United States." L. C. K., op. cit. supra note 4, at 518.
It is true that the exercise of the English king's prerogative of pardon has never
been left "to his own absolute discretion." The king's power can be controlled and
restrained by act of Parliament, and several acts have been passed for the purpose. When
it is pointed out, however, that "no Act of Parliament was ever passed to restrain or
limit the king's prerogative to grant a general pardon" (ibid. at 527), the explanation is
very simple. Since the king wrapped his action into the forms of a bill and an act of
Parliament, and thus subjected his action to check by Parliament, antecedent limitations
were unnecessary. This might even have been one of the main reasons for selecting the
device of legislation instead of a simple proclamation.
6Brown v. Walker (1896) 161 U. S. 591, 601.
7ALA. CoNsT. § 124; AaRz. CoNsT. art. V, § 5; ARx. CoNsT. (1874) art. VI, § 18,
Ar. DiG. STAT. (Pope, 1937) § 4217; CAL. CoNsT, art. VII, § 1, CAL. PEN. CODE § 1417
et seq.; CoLO. CoxST. art. IV, § 7; CoNN. GEr, STAT. (Supp. 1935) § 787c; FLA. CONST.
art. IV, § 12; GA. CONST. § 2-2612; IDAHO CoNsT. art. 4, § 7; ILL. CONST. art. 5, § 13;
IND. CoNsT. § 150; IowA CONsT. art. IV, § 16; Kom. GEN. STAT. ANN. (Corrick, 1935)
§ 62-2216; MAss. CoNST. § 64; Mica. CoNsT. art. VI, § 9; MINN. CONST. art. V, § 4, as
amended, MuiN. STAT. (Mason, 1927) § 10779; Miss. CONST. § 124; Mo. CONST. art. V,
§ 8, Mo. REv. STAT. (1929) § 3798; MONT. CozsT. art. VII, § 9, MONT. REv. CODES ANN.
(Anderson & McFarland, 1935) § 12247; NEB. CoNsT. art. IV, § 13, NEB. COAr. STAT.
(1929) §§ 29-2602, 29-2604; NEv. CoNsT. § 100; N. H. CONST. art. 52; N. J. CONST. art.
V, par. 10; N. M. CONsT. art. V, § 6; N. Y. CoNsT. art. IV, § 5; N. C. CoNsT. art. III,
§ 6; OHio CONST. art. IlI, § 11; OxrA. CoNsT. § 13527; ORE. CONST. art. V, § 14, ORE.
19391
9 LEGISLATIVE PARDONS
grant pardons for treason 8 In twenty of these the legislature is ex-
pressly authorized to pardon this crime,9 but in the others, surely the
power to pardon must reside somewhere. It would be an absurd and
indeed dangerous limitation to say that even in the event of serious
political upheaval or open rebellion, the legislature would be power-
less to quiet unrest and hatred by a pardon or amnesty. As a matter
of fact, no court has ever declared a legislative amnesty unconstitutional, although such acts were passed both by Congress and by state
legislatures after the Civil War,1 and it is extremely unlikely that
any court would ever do so.
We have been speaking of general pardons, whereas the California
bill was to grant a pardon to a specific individual, Tom Mooney. But
the point we have been trying to make is that those dicta which declare that the pardoning power is exclusively in the executive are
§ 13-1801; S.C. CONS?. art. 4, § 11; S. D. CoNsT. art. IV, § 5, S. D.
Comp. LAws (1929) §§ 5310, 5311; TENN. CONST. art. III, § 6, TENN. CODE (WilliamsShannon-Harsh, 1932) § 11814; Tx. CONST. art. IV, § 11, as amended 1936; UTAH
CONST. art. VII, § 12, UTAH REV.STAT. ANN, (1933) § 67-0-1; VA. CONST. § 73; W. VA.
CONST. art. VII, § 11; Wis. CONST. art. V, § 7; Wyo. CoNsT.art. IV, § S.The Louisiana
Constitution (art. V, § 10) does not specifically prohibit granting clemency before conviction, but apparently contemplates such a limitation, for the presiding judge of the
court "before which conviction was had" is a member of the board of pardons. See State
v. Klock (1895) 48 La. Ann. 140, 18 So. 942; State v. Moise (1896) 48 La. Ann. 109,
18 So. 943.
8
ARz.CONST. art. V, § 5; CAL. CoNsT. art. VII, § 1, CAL. PEN. CODE § 1417 et seq.;
COLO. CONST. art. IV, § 7; FLA. CONST. art. IV, § 12; GA. CoNsT. § 2-2612; IDAHO CONST.
art. 4, § 7; IND. CONsT. § 150; IowA CONST. art. IV, § 16; Ky. CoNsT. § 77; LA. CONST.
ANN. (Dart, 1932) art. V, § 10; MicH. CONST. art. VI, § 9; Miss. CoNsT. § 124; Mo.
CoNsT.art. V, § 8; NEB. CoNsT. art. IV, § 13; NEv. CoNsT. § 100; N. M. CoNsT. art. V,
§ 6; N. Y. CoNsT. art. IV, § 5; N. D. CoNsT. § 76; Onao CoNsT. art. III, § 11; ORE.
CoNsT. art. V, § 14, ORE.CODE ANN. (1930) § 13-1801; S. D. CoNsT. art. IV, § 5, S.D.
Comp. LAWS (1929) §§ 5310, 5311; TEx. CoNsT. art. IV, § 11, as amended 1936; UTAH
CONST. art. VII, § 12, UTAH REV. STAT. ANN. (1933) § 67-0-1; VT. CONST. C. II, § 20;
Wis. CoNsT.art. V, § 6; WYo. CoNsT. art. IV, § 5.
9CAL.CONST. art. VII, § 1, CAL.PEN. CODE § 1417 et seq.; FLA.CoNST. art. IV, § 11;
GA. CONST. § 2-2612; IDAo0 CODE ANN. (1932) § 19-3810; IND. CONST. § 150; IOWA
.CONST.art. IV, § 16; Ky. CONS?. § 77; LA. CONsT. ANN. (Dart, 1932) art. V, § 10;
MIc 1. CONST. art. VI, § 9; NEB. CoNsT. art. IV, § 13, NEB. ComP. STAT. (1929) §§ 292602, 29-2604; NEY. CoNs?. § 100; N. Y. CONST. art. IV, § 5; N. D. CONS?. § 76; Oro
CONST. art. III, § 11; ORE.CONST. art. V, § 14, ORE.CODE ANN. (1930) § 13-1801; S.D.
CONST. art. IV, § 5, S.D. Coup. LAws (1929) §§ 5310, 5311; UTAH CoNsT. art. VII, § 12,
UTAH REV.STAT. ANN. (1933) § 67-0-2; VT. CoNsT. c. II, § 20; WIs. CONST. art. V, § 6;
Wyo. CoNs?. art. IV, § 5.
10 St. Louis Street Foundry v. United States (1867) 73 U. S. (6 Wall.) 770, n.;
State v. Blalock (1866) 61 N. C. 242; State v. Cook (1867) 61 N. C. 535; State v. Keith
(1868) 63 N. C. 140; Bryan v. Walker (1869) 64 N. C. 141; State v. Applewhite (1876)
75 N. C. 229. See also State v. Eby (1902) 170 Mo. 497, 71 S.W. 52 (Beer Compromise
Act held valid as a general amnesty).
CODE A N. (1930)
CALIFORNIA LAW REVIEW
[Vol. 27
erroneous and unsound at least as applied to general pardons. Now
how about individual pardons? May the legislature grant a pardon
to a named individual?
It should be pointed out initially that the Anglo-Saxon law, unlike the French, makes no distinction between general and individual
pardons. The power of the executive to pardon is held to include the
power to grant general pardons." Conversely, the power of the legislature to grant pardons, if it exists at all, extends, in the absence of
express restriction, to individual as well as general pardons. "All
pardons either generall or speciall," said Lord Coke, "are either by
act of parliament... or by the charter of the king ..."
,12 Parliament
has at times exercised this power," and, in imitation of this practice,
colonial legislatures occasionally did the same. 4 Since that time no
less than half a dozen cases can be found in which individual acts of
pardon by state legislatures have been either held, or tacitly assumed
to be, valid. 15 Notwithstanding the plethora of dicta to the contrary,
11 The president of the United States has on several occasions issued proclamations
of general pardon: in 1794, after the Whiskey Insurrection; in'1798, after the House
Tax Insurrection; in 1815, pardoning the Barataria pirates; and the series of pardons
proclaimed during and after the Civil War, especially those of Sept. 7, 1867, July 4, 1868,
and Dec. 25,1868. Similar proclamations have been issued by state governors. See Michael
v. State (1867) 40 Ala. 361. In England, although the present practice, as stated in note 4,
supra, is to grant general pardons by act of Parliament with the royal assent granted
in advance, in the past the king frequently proclaimed such pardons in his own right.
This was done, for example, after the rebellion of Jack Cade in 1450, by Henry VII In
1508, Henry VIII in 1513, and Queen Mary in 1 53; although it is clear that it could
also have been done in each case by act of Parliament. In fact, Henry VII called a Parliament largely for this purpose, but then changed his mind, feeling that a pardon coming from himself would better "impropriate the thanks to himself." See L. C. K., oP. cit.
supra note 4, at 528-529.
123 Co. INsT. 233. "...
parliament can do every thing, except making a woman a
man, or a man a woman." DE LoLM , CoNsmrruT1oN1 oF ENOrAND (1821 ed.) 128, n.
13 See 1 BisHoP, Naw CRnuNAL LAw (1892) § 899.
1 In a case in Virginia in 1654 a man charged with murder was found by the jury
to have committed the homicide by misadventure. By the law of England he was entitled
in such a case to a pardon as a matter of course under the seal of the chancellor. But
there being no seal nor chancellor in the colony, the general assembly declared him pardoned. ScoTT, Cxmum-Ar. LAw 3x CoLoN A. Vmonrs (1930) 117.
15 People v. Bircham (1859) 12 Cal. 50 (act for relief from forfeiture on a bail bond
upheld; no question raised as to usurping pardoning power); Lyon v. Norris (1854) 15
Ga. 480; Bird v. Breedlove (1858) 24 Ga. 623; Bird v. Meadows (1858) 25 Ga. 251;
People v. Stewart (1874) 1 Idaho 546 (special statute remitting penalty held valid; no
question raised of invading governor's power); Rankin v. Beaird (1826) 1 il. 163
(special act requiring sheriff to discharge a person sentenced to stand committed until
fine was paid, held valid); Conner v. Bent (1822) 1 Mo. 235 (special act upheld releasing defendant from a judgment to pay over public money; no question raised of pardoning power).
19391
LEGISLATIVE PARDONS
only one case can be found in which a legislative pardon to an individual was held unconstitutional. This is a Florida case holding unconstitutional an act "to restore civil rights" to an individual who
served his sentence and then was found to have been innocent. 16
Ordinarily, it is of course true that the granting of pardons in individual cases is a matter more properly handled by the executive
than by a legislative body, and it is not surprising that Parliament
and the state legislatures have rarely undertaken to act. But the fact
that proper occasion for the exercise of the power may seldom arise
offers no basis for denying that the power exists. It is one thing to
say that the legislature should not ordinarily spend its time passing
upon pardon applications and quite another to contend that even in
extraordinary cases, such as that of Tom Mooney, the legislature
lacks the power to act.
It is also true that in the majority of states today there is an express constitutional restriction against special legislation, which prohibition of course embraces special acts of pardon. But this restriction has no peculiar application to pardons, and confirms rather than
denies the statement that, in the absence of such restriction, the legislature has power to grant individual as well as general pardons.
The most frequent application of the exclusive power doctrine
today is not in cases where the legislature expressly undertakes to
grant a pardon-for legislative pardons are rare today-but in cases
involving statutes which do not in terms deal with the pardoning
power at all, but which in the court's opinion do, in effect, constitute
an attempt to exercise pardoning power. Thus an act authorizing trial
courts to commute sentences within thirty days after judgment has
been held an invalid infringement upon the governor's prerogative
to pardon.17 Similar holdings have been made in regard to acts authorizing courts to suspend all or part of the punishment upon conviction
of desertion for non-support,' 8 permitting the county board of supervisors to discharge infirm convicts,' 9 or to change the sentence from
work on a chain gang to the hiring of the convict to a private person
for private work," authorizing "good time" deductions to convicts
16 Singleton v. State (1896)
38 Fla. 297, 21 So. 21, 34 L.R.A. 251. In Opinion of
Justices (1787) 14 Mass. 472, the court delivered an advisory opinion that a legislative
act commuting a sentence would be unconstitutional.
17 People v. La Buy, supra note 1.
18
State v. Jackson, supra note 1.
19 State v. Kirby, supra note 1. Cf. State v. Thompson, supra note 1.
20 Ogletree v. Dozier (1877) 59 Ga. 800.
CALIFORNIA LAW REVIEW
[Vol. 2 7
already serving sentence,' or requiring a county treasurer to pay to
sureties for a criminal defendant the amount which they had paid
as his fine.'
It is generally said to be too well established to require the citation of authority that the legislature can legally achieve the same effect as a general pardon before conviction by repealing the statute
creating the offense without a saving clause, and that all prosecutions
thereupon fall and all offenses not yet prosecuted are thereupon wiped
out." Yet a few cases seem to contravene even this well recognized
rule. Such a repeal has been said to operate as a legislative pardon,'4
and in at least two states such acts have actually been held invalid
for that reason.? This seems to carry the prohibition against legislative pardons to absurd lengths and to forbid not only actual pardons
by the legislature but to forbid anything that remotely resembles a
pardon, even when it constitutes simply a part of the obvious legislative function of enacting and repealing laws.
Laws authorizing trial courts to suspend sentence or place defendants on probation have in several states run afoul of the objection that this constituted an invalid delegation of the pardoning power
to the judiciary. 28 The parole system has been similarly hampered
21 State v. McClellan (1888) 87 Tenn. 52, 9 S. W. 233. But see Hartung v. People
(1860) 22 N.Y. 95, 105. As to persons convicted after its enactment, an act providing
for good time deductions is valid. Ex parte Wadleigh (1890) 82 Cal. 518, 23 Pac. 190;
Fite v. State, supra note 1.
22
Haley v. Clark; State v. Stone, both supra note 1.
23 Coles v. County of Madison (1826) 1 Ill. 154; Wharton v. State (1867) 45 Tenn.
(5 Cold.) 1, 94 Am. Dec. 214.
24State v. Johnson (1838) 12 La. 547, 552; Vharton v. State, supra note 23.
25 State v. Sloss, supra note 1 (act absolving from prosecution all persons under
indictment for violation of the dram shop act, on condition of paying fee of two dollars
and costs, held bad) ; State v. Todd (1857) 26 Mo. 175 (same) ; State v. Fleming (1846)
26 Tenn. (7 Humph.) 121, 46 Am. Dec. 73 (act to dismiss all prosecutions under prior
act punishing tippling, upon passage of a new act to permit sale of liquor, held invalid).
26Montgomery v. State (1935) 231 Ala. 1, 163 So. 365; Vinson v. State (1918) 16
Ala. App. 536, 79 So. 316; Snyder v. State (1921) 18 Ala. App. 188, 90 So. 40; Clark v.
State (1925) 20 Ala. App. 472, 102 So. 916; Neal v. State (1898) 104 Ga. 509, 511, 30
S. E. 858, 859; Brabandt v. Commonwealth (1914) 157 Ky. 130, 162 S.W. 786; People
v. Brown (1884) 54 Mich. 15, 27; Fuller v. State (1911) 100 Miss. 811, 57 So. 806;
State v. Jackson, supra note 1; State v. Moran (1919) 43 Nev. 150, 182 Pac. 927;
Ex parte Clendenning (1908) 22 Okla. 108, 97 Pac. 650; State v. Anderson (1921) 43
S. D. 630, 181 N.W. 839; State v. Taylor (1923) 47 S. D. 124, 196 N.W. 494 (suspension of execution); Ex parte Dunn (1926) 50 S. D. 48, 208 N. 'V. 224 (suspension of
imposition of sentence); Friske v. Circuit Court (1927) 51 S. D. 415, 214 N.W. 812
(suspension after partial execution) ; In re Flint (1903) 25 Utah 338, 71 Pac. 531. In
some cases it is not dear whether the power was denied because not conferred by statute
or because it would be unconstitutional to confer such power. Martin v. People (1917)
19391
LEGISLATIVE PARDONS
by decisions holding that parole is "in the nature of a conditional
pardon," and that therefore the legislature has no power to enact a
parole law, because that would be an attempt to grant legislative pardonsY" Some courts have held that while. a parole law is not in itself
an invalid exercise of legislative power, it would constitute an invasion of the pardoning power if applied to convicts sentenced before
its enactment. 28 Such restrictions constitute an overzealous guarding
of the executive pardoning power, are socially unfortunate, and the
more modern cases reject them. 29
On the other hand, a statute authorizing a trial judge to substitute imprisonment for fine where the defendant is unable to pay the
fine has been sustained as against the objection that it infringes the
governor's power to grant pardons and reprieves 3 ° A statute giving
an appellate court power to stay sentence of death pending an appeal
has been held valid. 31 So also an act giving to persons imprisoned for
non-payment of fines the benefit of laws for the relief of insolvent
debtors and authorizing their discharge, 2 and an act authorizing
courts to set aside or modify revocations of motor vehicle drivers'
licenses. 3 Undoubtedly valid also are many other types of statutes
which have usually gone unchallenged; for example, acts authorizing
trial judges to remit punishment of persons convicted of intoxication
on condition of giving evidence as to the person from whom the liquor
was obtained, 34 or making marriage a bar to an indictment for seduc69 Colo. 60, 168 Pac. 1171; People v. Stickle (1909) 156 Mich 557, 121 N.W. 497;
People v. Morrisette (N.Y. 1860) 20 How. Prac. 118.
2
rPeople v. Cummings (1891) 88 Mich. 249, 50 N.W. 310, 14 L.R.A, 285; State
v. State Board of Corrections (1898) 16 Utalk 478, 52 Pac. 1090; and see In re Conditional Discharge of Convicts, supra note 1.
28 State v. McClellan, supra note 21; Fite v. State, supra note 1.
2
9 Laird v. Sims (1915) 16 Ariz. 521, 147 Pac. 738; People v. Roth '(1911) 249 II.
532, 94 N. E. 953; Miller v. State (1898) 149 Ind. 607, 49 N. E. 894; George, etc. Commissioners v. Lillard (1899) 106 Ky. 820, 51 S.W.793; Board of Prison Commissioners
V. De Moss (1914) 157 Ky. 289, 163 S.W. 183; People v. Warden of Sing Sing Prison
1902) 39 Misc. 113; State v. Peters (1889) 43 Ohio St. 629, 4 N. E. 81; Woods v. State
1914) 130 Tenn. 100, 169 S. W. 58.
80 Ex parte Parker (1891) 106 Mo. 551, 17 S.W. 658.
31 Parker v. State (1893) 135 Ind. 534, 35 N.E. 179, 23 L. R. A. 859, overruling
Butler v. State (1884) 97 Ind. 373. See also Opinion of the Judges (1909) 3 Okla. Cr.
315, 105 Pac. 684.
32
Ex parte Scott (1869) 19 Ohio St. 581.
83 1n re Probasco (1934) 269 Mich. 453, 257 N. W. 861.
3
1PIeuler v. State (1881) 11 Neb. 547, 10 N. W. 481. The court in this case pointed
out that this act exempted from punishment only upon specified conditions, whereas a
pardon "is not a right given for a consideration to the individual by the legislature, but
a free gift from the supreme authority, confided to the chief magistrate and to be be-
CALIFORNIA LAW REVIEW
[Vol. 27
tion, or barring certain prosecutions upon a compromise.36
Acts restoring to competency as witnesses persons who have been
convicted of crime have been held invalid in Missouri and Texas as an
attempted exercise of the pardoning power, insofar as they applied
to persons convicted before the act went into effect 30 It would seem
sounder, however, to hold that the incompetence is imposed because
a convicted person is presumed to be untrustworthy, and not as a
punishment to him, for while the rule may disgrace or humiliate the
convict, it "punishes" only the party who is deprived of his testimony.
Statutes restoring competence might, therefore, be held to be an exercise of the legislative power to determine who shall be competent to
testify, rather than an exercise of the pardoning power. In other
states, objection to such statutes on this ground has not even been
37
suggested.
Immunity statutes, providing that no person should be excused
from testifying on the ground that his testimony would incriminate
him, but that no person so required to testify should be punished for
acts disclosed by such testimony, are clearly valid when limited to
offenses committed after their enactment," but it has been held in
Texas that if construed to apply to witnesses already convicted, they
would in effect grant pardons after conviction, a power exclusively
granted to the executive.39 Here too it would seem sounder to hold
that this is merely an exercise of the undoubted legislative power to
amend the criminal law of the state, rather than of the pardoning
power. This was the view taken by the United States Supreme Court.1
From this review of cases we see that the exclusive power doctrine
has been employed not to prevent the legislature from actually enactstowed according to his own discretion." It is interesting to compare such statutes to the
ancient law of "approvers," by which a man indicted for treason or felony could confess
his guilt and swear to reveal all the treasons and felonies he knows. If he succeeded in
convicting all those whom he accused, either in trial by battle or by verdict, he was
pardoned. See 2 HAwxiNs, PLEAs oF THE CRowX (8th ed. 1824) 281-287; 4 BL. CoasM.
*329, *330.
35
See State v. Forkner (1895) 94 Iowa 1, 62 N. W. 772.
86 State v. Grant (1883) 79 Mo. 113; Underwood v. State (1927) 111 Tex. Cr. Rep.
124, 12 S.W. (2d) 206, 63 A.L.R. 978.
T
9 Hopt v. Utah (1884) 110 U. S. 574; Sutton v. Fox (1882) 55 Wis. 531, 13 N.W.
477.
3In re Briggs (1904) 135 N. C. 118, 47 S, E. 403; State v. Bowman (1907) 145
N. C. 452, 59 S. E. 74; Ex parte Muncy (1913) 72 Tex. Cr. Rep. 541, 163 S.W. 29.
89 Ex parte Miers, supra note 1.
40
Brown v. Walker, supra note 6. In State v. Ruff (1929) 176 Minn. 308, 223 N. W.
144, the notion that the statute might be subject to such an objection was not even
considered.
1939]
LEGISLATIVE PARDONS
ing pardon laws-such laws have been almost uniformly upheldbut to strike down a great body of legislation, all of it otherwise unobjectionable and some of it, like suspension of sentence and parole
laws, of the utmost social value. Even if it were sound in theory, the
rule in operation has worked more mischief than good.
If the exclusive power theory is rejected, what is the correct rule?
Three alternatives are available:
(1) That the power is concurrent. Pardons may be granted either
by the executive or by legislative act.
(2) That the power is partially concurrent; i.e., the executive
alone may grant individual pardons but the legislature retains the
right to enact general laws of pardon and amnesty.
(3) That the power is supplementary. The legislature retains
the right to grant pardons in cases not covered by the executive power.
All three find some support in the cases. The concurrent power
theory was definitely adopted in two North Carolina casei in which
the court said that the constitutional provision vesting power in the
governor to grant reprieves, commutations and pardons, after conviction, "was not the grant of an exclusive power and did not deprive
the General Assembly of the power to pass special or general acts of
pardon, like the English Parliament, even before conviction."4 1
In several cases in the federal courts, it has been said "while pardons are usually granted by the executive, the pardoning power by
no means is confined to that branch of the government."' 4 And as
already indicated, special legislative acts of pardon were not infrequent a hundred years ago and the validity of such acts was either
expressly or tacitly conceded.
The partially concurrent power theory is an attempt to reconcile
the dictum that the executive power is exclusive with the incontrovertible fact that amnesties have been and probably will continue to
be a subject of legislative action. Inasmuch as it would be difficult
to hold that a general act of amnesty was not within the proper power
of the legislature, this theory would make a distinction between general and individual pardons-the legislative power extending to general acts, but individual pardons coming only within the purview of
the executive. No case can be cited definitely adopting this distinction
although it is suggested by the North Carolina court in a case wherein
41
In re Briggs; State v. Bowman, both supra note 38.
42
United States v. Hughes (1892) 175 Fed. 238, 241. Accord: United States v. Hall
(1892) 53 Fed. 352; United States v. Perkins (1936) 17 Fed. Supp. 851. See also People
v. Potter (N.Y. 1845) 1 Park. Cr. Rep. 47, 55.
CALIFORNIA LAW REVIEW
[Vol. 27
it was said that the constitution "confers on the governor the power
to exercise clemency in a particul'ar case, and in favor of an individual
or individuals especially charged with the offense; this being an executive act of a quasi-judicial kind, permissible to the governor by reason
of this express provision of the Constitution, while an amnesty act
establishes a general rule abolishing the offense, and applicable to all
persons, or persons of a given class, whether charged or not, this being
43
more especially an act legislative in its nature.
The supplementary power theory starts with the observation that
the executive power to pardon is almost everywhere subjected to certain limitations, as for example that no pardon shall be granted for
certain offenses, or until after conviction. Arguing that "whenever
there is a crime or punishment remaining in force, there should be a
power of pardon," 4 it can be contended that while the executive
power is exclusive within its own domain, yet in cases where the executive is not authorized to act, the legislature may do so. Thus the
Texas Court of Criminal Appeals has said that where the Constitution
grants power to the governor to pardon after conviction, "the power
to pardon before conviction still rests with the sovereign people, and
they, acting through their representatives, the Legislature, could bestow it upon the governor, the courts, or any other agency of government, or by legislative act could reprieve or pardon before conviction. ' 45 This theory has also been accepted by the Arkansas court:
"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....
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
its penalties, partakes more of a legislative
of dispensing with the law and
46
than an executive character.1
Proponents of the exclusive power theory would probably answer
these contentions by saying that it is not true that there should be a
3State v. Bowman, supra note 38, at 454, 59 S. E. at 75. See also Hutton v. McCleskey (1918) 132 Ark. 391, 200 S.W. 1032.
44
Commonwealth v. Green (1822) 17 Mass. 514, 542.
45 Ez parte Muncy, supra note 38, at 562, 163 S.W. at 44.
46
State v. Nichols (1870) 26 Ark. 74, 79.
1939]
LEGISLATIVE PARDONS
383
power to pardon for all crimes and punishments, but that, on the contrary, the exception of certain cases from the pardoning power of the
executive was intended to mean that there should be no power in anyone to pardon in such cases.
It is submitted that the sound theory is that the power is concurrent. Bishop has stated the rule correctly:
"According, therefore, to the system of laws whence ours are derived,
pardon may proceed from either the executive or the legislative department,
the authority of neither being exclusive. It is the common style of our written constitutions to confer on the Governor specific executive powers, and
on the legislature general legislative ones; the result whereof would seem
power expressly given, and a
to be that a Governor has only the pardoning
legislature all not expressly withheld." 47
The power is fully concurrent, and not limited either to general
acts or to cases not covered by the executive power. Historically, there
has never been any distinction made in Anglo-Saxon law in the power
to grant general and individual pardons. The executive pardoning
power is generally said to include power to grant general as well as
individual pardons, so it is difficult to see why a general legislative
pardon should not be considered as much an invasion of the executive
power as where the legislature undertakes to grant a pardon to a
named person. Conversely, if a general pardon is within the proper
scope of legislation, so is an individual pardon.
Nor is there any sound reason for the limitation involved in the
supplementary power theory-that legislative power to pardon extends only to cases not covered by the executive power. No historical
basis for such a division exists. Nothing in the wording of any state
constitution suggests it, nor is it compelled by any reasons of logic
or policy. The only objection which can be urged-that it would be
undesirable to have the legislature granting individual pardons-has
already been answered: this is an objection not peculiar to pardon
but one which applies to special legislation generally, and should be
taken care of by a constitutional prohibition against special legislation.
Recognition of the legislative power to pardon would accomplish
two worthy objectives. First, it would remove any doubts which the
exclusive-executive-power dictum may have cast over the vital power
to declare amnesties by legislative act; and, second, it would remove
a wholly insupportable obstacle to the legislature's power to enact a
47 1 BisuoP, op.
cit. supra note
13, § 900.
CALIFORNIA LAW REVIEW
[Vol. 27
great many measures of undoubted social utility, having only slight
resemblance to pardon but which the courts have all too frequently
stricken down as constituting an invasion by the legislature of the
"exclusive pardoning power" of the executive.
It may be of interest to apply what has been said thus far to the
case of Tom Mooney. Strangely enough, the California constitution
contains a provision not found in any other state, which seems expressly to recognize the power of the legislature to grant pardons.
The article on the pardoning power, after providing that "the governor
shall have the power to grant reprieves, pardons and commutations,"
subject to certain restrictions, concludes with the following sentence:
"Neither the governor nor the legislature shall have power to grant
pardons, or commutations of sentence, in any case where the convict
has been twice convicted of a felony, unless upon the written recommendation of a majority of the judges of the supreme court."4
The inclusion of the words "nor the legislature" in this limitation
would seem to indicate, if it means anything, a recognition of the
power of the legislature to grant not only general but also individual
pardons. Converting its negative into affirmative wording, this sentence says that the legislature may grant pardons, but it may pardon
second offenders only upon recommendation of the judges of the
supreme court.
Whether the framers of the California Constitution intended this
construction it is impossible to say. This sentence was added by the
Constitution of 1879, and constitutes the only material addition to the
pardon provision found in the Constitution of 1849. There was a great
deal of debate in the convention of 1878 regarding the provision,40
but it was all addressed to the desirability of some restriction on pardons for second and third offenders. The inclusion of the words "nor
the legislature" in the sentence was not explained by the committee
which drafted the provision nor commented on in the debates. The
fact that the debates concerned themselves entirely with the pardoning power of the executive, and ignored the question of whether the
legislature could exercise such a power, might be argued as evidence
that legislative power was assumed not to exist. On the other hand the
California legislature in 1853 had by special act relieved a litigant
from forfeiture of a bail bond, and this act was upheld by the court; 10
48
CAL. CoNsT. art. VII.
49 See 1 DEBATES AND PROCEEDINGS OF THE CONSTTIONAL
STATE or CATIFoPNIA (1880), especially pp. 276-279, 354 et seq.
50 People v. Bircham, supra note 1S.
CONVENTION OF THE
1939]
LEGISLATIVE PARDONS
and it is not unreasonable to assume that the delegates to the convention, or at least the members of the committee on the pardoning
power, were aware of this and did not intend to deprive the legislature
of this power. In short, the debates in the convention of 1878 throw
no light on our question. We must construe the meaning of the Constitution from its own words, and these seem to recognize a legislative
pardon.
One question remains: Can it be argued that this power of the
legislature has been restricted by a constitutional prohibition against
special or local legislation, which would forbid an act specifically pardoning a named individual? The California constitution has no sweeping provision, such as that found in certain other states, e.g., Michigan, 51 that "the Legislature shall pass no local or special law in any
case where a general act can be made applicable ... ." but it does contain a provision expressly prohibiting special or local legislation in
certain enumerated cases. The cases enumerated are thirty-three in
number, but only four of these can have any possible relevance to
pardons. These prohibit special or local laws:
"Second-For the punishment of crimes and misdemeanors....
"Twenty-second-Restoring to citizenship persons convicted of infamous crimes....
"Twenty-sixth-Remitting fines, penalties or forfeitures ....
"Thirty-third-In all other cases where a general law can be made applicable." 52
None of these covers pardons. Certainly a legislative pardon is
not a law "for the punishment of crimes and misdemeanors." A pardon might be considered an act "restoring to citizenship," for a pardon
does ordinarily have this effect. It is clear, however, that under established California law, a restoration to citizenship is not the same as
53
a pardon, and the state supreme court has distinguished the two.
Nor is a pardon an act "remitting fines, penalties or forfeitures."
True, the term "pardon" is a general one, broad enough to include
remission of fines and penalties. But the converse is not true, that
"remission" is broad enough to include all pardons. The "fines, penalties or forfeitures" referred to include only monetary or property
losses. The pardon of a man serving a life sentence for murder would
never be referred to as a remission of a penalty. The most convincing
51 MIc.
CONsT. art. V,
52 CAL.CONS?. art. IV,
§ 30.
§ 25.
5 People v. Bowen (1872) 43 Cal. 439, 13 Am. Rep. 148.
CALIFORNIA "LAW REVIEW
[V€ol. 27
reason for saying that the California provision against certain types
of special legislation does not include pardons is the fact that the
word "pardon" is not used. It would seem strange indeed, if the framers of the California Constitution meant to forbid special legislative
acts of pardon, that they did not say so in direct language. There is
no simpler, more obVious word to use when referring to a pardon than
"pardon." Why did they instead use phrases like "restoring to citizenship" and "remitting fines, penalties and forfeitures?" The answer is
that they deliberately did not use the word "pardon" because they
did not wish to include pardons, but only the specific types of restoration and remission which they did enumerate.
The final enumeration, forbidding special legislation "in all other
cases where a general law canibe made applicable" makes it clear that
all the other cases enumerated above were meant to be only cases
where a general law could be made applicable. No general law can
apply to the situation where a pardon is sought for a person on the
ground that he is innocent of the crime for which he was convicted
and was "framed" by the prosecution. It is too late to obtain judicial
determination of his innocence; the courts are closed to him. The
legislature must therefore determine the facts for itself. This is a matter of proof in each specific case, and cannot be handled by a general
law.
In conclusion: It is within the power of the legislature of every
state as well as of Congress to enact at least general laws of pardon
and amnesty. Moreoirer, Congress and state legislatures not specifically prohibited by their constitutions may even grant pardons in
individual cases. There being no such constitutional prohibition in
California, a legislative pardon for Tom Mooney would have been
valid.
Henry Weihofen.
TNvERsrY or COLORADO,
BOULDER, COLORADO.