State v. Grant.

arson, burglary, robbery or larceny, in any degree in this chapter specified, or who shall be sentenced to imprisonment in the penitentiary for any other crime punishable under the provisions of this chapter, shall be incompetent to be sworn as a witness or serve as a juror in any cause, and shall be forever disqualified from voting at any election, or holding any office of honor, trust or profit, within this State. In the revision of 1879 the words "to be sworn as a witness," were omitted. § 1378. Similar statutory changes also occur in the present revision. §§ 1416, 1467. Do these omissions, these changes in the law, apply retrospectively? Were they intended to apply in that way?

[Omitting this discussion.]

But there are reasons, and very cogent ones, it would seem, which may be urged to show that even had the legislature intended that the omission of the words " to testify as a witness" should relate to antecedent convictions, should upon those convictions, lop off a portion of a judgment of a court of competent jurisdiction, and restore to competency one whom the law beforehand, and the judgment of the court subsequently had branded as infamous-that this was something altogether beyond the pale of legislative power. After judgment has been passed upon an offender, there are but two ways whereby he can be relieved from the results flowing from that judicial act; first, by a reversal of the judgment, and second, by a pardon. 1 Greenleaf Ev., § 377 and cases cited. But it is said that "a distinction had been taken where the incompetence is the general constructive result by presumption of law on conviction on an infamizing charge, and where it is expressly included in the legislative sanction as a consequence annexed to the particular offense and that inseparably, until the judgment be reversed." Therefore the law is now held to be that on perjury at common law the party. pardoned may be a witness, because a king has power to take off every part of the penalty. But if a man be indicted for perjury on the statute the king cannot pardon so as to discharge this incompetency, for the king is excluded and divested of that prerogative by the express words of the statute: "The oath of such person so offending not to be received in any court of record." or as the statute elsewhere expressed it, "the offender from thenceforth to be discredited and disabled forever to be sworn in any of the courts of record." 1 Gilb. Ev., 260; 1 Greenl. Ev., §§ 377, 378; 1 Chitt. Crim. Law, 602, 776; 7 Bac. Abr., 417; 3 id. 487.

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State v. Grant.

But a party thus convicted might have been restored by a statute pardon; Rex v. Ford, 2 Salk. 690; and the authorities cited state that the reason of the difference between the two kinds of pardon is this that in a pardon based on a prosecution based on the common law the loss of certain civil rights only flows from the conviction as a consequence of the judgment; while in a conviction based on a statute which annexes certain disabilities to the conviction of the crime by express words, the disabilities under the sanction of the law become part of the judgment. Rex v. Ford, supra, and cases cited; Rex v. Griepe, 1 Ld. Raym. 256; 3 Bac. Abr. 487, and cases cited. The disability which the statute of 5th Elizabeth annexes to the commission of the crime of perjury was construed to be a part of the punishment, and where conviction followed prosecution the disability was held to be part of the judgment. And it does not appear to have been necessary that the provision of the statute touching the disability should have been formally entered on the record, in order that it constitute a part of the judgment. 2 Hargrave's Jurid. Arguments, 221. According to the author just cited, where the power of the king to pardon is discussed with distinguished clearness and ability, it may well be doubted whether the distinction taken in the authorities previously cited, between a pardon based on a common-law conviction and one based on a statutory conviction, is well taken. But there appears to be no difference of opinion as to the view that where the statute annexes certain disabilities to the commission of a crime, upon conviction of the crime those disabilities form part and parcel of the judgment, and it would seem at first blush that this must be so. Ex. gr. it is a familiar rule that whatever the law implies will be as much part of a contract as if expressly inserted therein; and as to judgments in civil cases the same rule prevails. A judgment for the recovery of money will bear six per cent interest, though no such statement be made in the judgment entry. A judgment lien will last for three years, though in the judgment itself no such statement be entered, and a judgment will be valid and binding for ten years though the record entry of the judgment be silent on the point. From these premises the conclusion may rationally be drawn that under the statutory provisions now being discussed the disabilities which that statute annexes to the commission of a certain offense form, where conviction follows prosecution, part and parcel of the conviction. And if such disabilities do not form, in contemplation of law, part

State v. Grant.

of the judgment of conviction - part of the punishment annexed to the crime then the record of the judgment of conviction would afford no evidence that the disabilities denounced by the statute had been incurred. The statute of 5 Elizabeth does not require, no more than does section 1378, that the disabilities specified should in haec verba form part of the judgment of conviction. Now the question arises, if section 1378 is to have a retroactive effect, whether it does not exceed the power of the legislature. Under the present Constitution "powers of government are divided into three distinct departments - the legislative, executive and judicial — each of which shall be confided to a separate magistracy; and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instance in this Constitution expressly directed or permitted." Art. 3.

If the conclusion be the correct one that the disabilities annexed to a conviction of the crime of petit larceny form part of the punishment, and of consequence part of the judgment, then it would seem to follow as an obvious and necessary sequence that any act of the legislature professedly remitting a portion of the judgment, professedly relieving the convict of one of the disabilities incurred, cannot prevail, if the Constitution, which forbids one department of the government from the exercise of any power properly belonging to either of the others, is to be obeyed. To push the point at once to its logical extreme, suppose that the legislature had also omitted from section 1378 the words, "to serve as a juror in any cause and shall be forever disqualified from voting at any election, or holding any office of honor, trust or profit, within this State," would any one possess sufficient temerity to contend that such omissions would restore every convict theretofore convicted to his former civil status, rehabilitate him with his former rights of citzenship, and resurrect him from his civil grave? If the legislature could accomplish such an end by such means, then it would be competent for that body to pass a general law proclaiming in terms that every convict theretofore convicted should be restored to all the civil rights, capacities and privileges lost by reason of his conviction; and such a law would be valid and accomplish the design expressed on its face. For what the legislature may do indirectly, that may they directly. But such an enactment, in my opinion,

State v. Grant.

would be clearly trenching upon the power of the governor and be a usurpation by the legislature of the pardoning power; for if the legislature can remit any portion of the sentence or judgment of a court of competent jurisdiction, then there is no obstacle to their remission of the whole sentence. The difference is only in degree and not in kind. I take it that when the statutes annex certain disabilities, the loss of certain civil rights, to the conviction of a crime and a conviction that crime thereafter occurs, thereupon by force and operation of the law and of the judgment of conviction the disabilities become welded to the crime, forming thereby an indivisible integer incapable of separation by any exertion of legislative power. And this is especially true under a Constitution such as ours. The position here taken is plainly this: That the pardoning power is vested by our Constitution alone in the governor; that aside from the reversal of the judgment in a criminal cause, the only method of relief from the disabilities annexed to such judgment is by a full pardon of the offense, and that while the crime itself remains unpardoned, the disabilities annexed thereto will remain unaltered and unaffected by any legislative act. I will cite some cases illustrating this position :

In Pennsylvania, which possesses, so far as concerns the point in hand, a Constitution substantially identical with our own, the legislature in 1861 passed an act providing for a graduated deduction from the term of sentence of every prisoner in the penitentiary who should have no infraction of the rules recorded against him. Two convicts made application by habeas corpus for their discharge under the provisions of that act, whereupon the Supreme Court said: "A majority of us think the act is unconstitutional as interfering with the judgment of the judiciary. The whole judicial power of the Commonwealth is vested in courts. Not a fragment of it belongs to the legislature. The trial, conviction and sentencing of criminals are judicial duties, and the duration or period of the sentence is an essential part of a judicial judgment in a criminal record. Can it be reversed or modified by a board of prison inspectors? If it can, what judicial degree is not exposed to legislative modification? From what judicial sentence may not the legislature direct deductions to be made if this act be constitutional? What they may do indirectly they may do directly. If they may authorize boards of inspectors to disregard judicial sentences, why may they not repeal them as fast as they are pronounced and thus

State v. Grant.

assume the highest judicial functions? It is to be observed that these questions have reference to the power of the legislature to prescribe a general rule of law that shall be inconsistent with a previous judicial decree. Such a rule, when it operates on future cases and not retrospectively, is quite legitimate; their power to legislate in that manner is not to be doubted. But under the act in question the good conduct of a particular individual, under judicial sentence, is to work out for him an abatement of part of his sentence. In respect to one of the relators, who was convicted and sentenced before the law was passed, it is considered very clear that it is a legislative impairing of an existing legal judgment.

Any interference with that sentence, except by a court of superior jurisdiction, or by the executive power of a pardon, would seem to be a prostration of that distribution of governmental functions which the Constitution makes among co-ordinate departments. In this view the act would be highly unconstitutional." Com. v. Halloway, 42 Penn. St. 446.

In Massachusetts this case occurred: McKenzie was sentenced to the State prison for forgery; subsequently the governor granted him a pardon, whereby, as set forth in the charter, the governor "remitted to McKenzie the residue of the punishment" he was sentenced to endure in the State prison. Thereafter McKenzie's deposition being offered it was objected to on the ground that the competency of McKenzie was not restored by said "charter of pardon," whereupon MORTON, J., after remarking upon the limited character of the pardon, said: "It is only a full pardon of the offense which can wipe away the infamy of the conviction and restore the convict to his civil rights.

"We think the view taken by a former distinguished law officer of this Commonwealth, whose long experience in the administration of criminal law gave to his opinions the weight of authorities, are correct and sound. He says: 'There is but one mode now in use of restoring the competency of a witness, and that is by pardon under the great seal of the State, which when fully exercised is an effectual mode of restoring the competency of a witness. It must be fully exercised to produce this effect, for if the punishment only be pardoned or remitted it will not restore the competency and does not remove the blemish of character. There must be a full and free pardon of the offense before these can be restored and removed."" Perkins v. Stevens, 24 Pick. 277.