Grubb v. Bullock

44 Ga. 379 | Ga. | 1871

Lead Opinion

Lochrane, Chief Justice.

But to make the pardon valid as to the securities, it must be valid as to the principal, and the plea by such sureties must show the delivery of the pardon to him, and its acceptance by him. The law works no injustice, and when sureties fail to show a pardon valid as to their principal, it cannot be available as to them. We have no hesitation in affirming the views we expressed in the case of Dominick vs. the jailor of Spalding county, at this term, sustained as it is by the authority of the Courts of Great Britain and of the United States, without a dissenting voice. True, if called upon by indictment, it must be pleaded. True, it is a plea, but it is a plea in bar; a plea that stops the Court and demands a discharge of the party. No Court can disregard it, none set it aside. When pleaded, it blots out the offense, and the offender stands covered with it as a shield against prosecution. If conviction had to take place before pardon could be granted, then it would be a plea in arrest, but in 7 Peters’, United States vs. Wilson, Chief Justice Marshall treats a pardon *382as a plea in bar. In bar of what ? Why, surely, a prosecution. If a plea in bar of a prosecution, then as surely it may be granted before conviction; because, if not granted before conviction, it would be no plea in bar of a prosecution. These legal truths are self-evident, and to rational minds, learned in law, assert their own force, without necessity of argument to demonstrate them. And equally clear is it, that if a pardon may be pleaded in bar of a prosecution, it is not necessary to have the prosecution to ascertain whether an offense has been committed ; else, it is not a plea in bar, and all writers on the subject have been ignorant of its character and effect. Our opinion, sustained by the learning of the greatest names that ever adorned the judicial history, names that have risen out of the cloud to shine- as fixed stars, and have overflowed history with glory, we feel assured is based on principles of law as eternal as the science itself.

But while a pardon may be granted before as well as after conviction, it must be granted to the principal upon his application, or be evidenced by a ratification of the application by his acceptance of it. For the theory of pardon is preceded by confession of the imputed guilt. When the people of Georgia accepted President Johnson’s pardon there was no necessity of a conviction to ascertain the offense committed ; it was conceded. The amnesty lie poured out over the whole country, by wholesale, the Courts of the United States have recognized. In what fearful peril might all have been plunged by a different rule of construction, subjected to indictment, costs, exposures and imprisonments ! Against all these his pardons before conviction were pleas in bar to stop the machinery of a prosecution, but these pardons had to be accepted as evidence or to be used as evidence. And inasmuch as the pleadings here fail to show any application or any acceptance by the principal, we affirm the judgment of the Court below.

Judgment affirmed.

*383McCay, Judge, from the bench, concurred, upon the ground stated in the head-note, saying he was undecided as to the legality of a pardon before conviction. He wrote no opinion.



Concurrence Opinion

Warner, Judge,

concurring.

I concur in the judgment of affirmance, in this case, on the ground that the Governor had no legal power or authority, under the Constitution of this State, to grant a pardon before trial and conviction of the defendant for the offense with which he was charged.