#### Baldwin et al. vs. Scoggin, use, &c.

'The G-overnor'has the power to-remit fines under the provisions of the Constitution; although the Legislature has failed to regulate the exercise of such power.

And he may remit a fine, although the act of the Legislature deplare that the fine, when collected, be paid into the county treasury, for the use of common schools.

A sheriff has no power or discretion to receive a note or property, in payment or satisfaction of a fine adjudged against a defendant in a criminal prosecution;, nor has the county -treasurer and ex officio treasurer of the common school -fund, to whom. *428such fine is directed to he paid, any such power or discretion; a note so given and received in such case,, being no payment or satisfaction, the fine had not passed beyond the pardoning power of the Governor.

Appeal from the QircuátPQowrt of Ouachita, Oowity.

Tbe Hon. Shelton "WatsoN, Circuit Judge.

Stith, for tbe appellant.

General construction and effect of pardons. & Eng. 284/ 7 id. 122 / 7 Peters 130/ 3 vol. U. 8. Pig.,p. 78, sec. 14, and case there cited.

Tbe judgment or conviction wbicb was pardoned by tbe Governor, was in favor of tbe State of Arkansas. Can a promissory note satisfy or destroy a judgment %

CuRRAN & Gallag-heb, for the appellee.

By tbe constitution, tbe Governor has tbe power to remit fines, under such rules and regulations as shall Toe prescribed Toy law; and tbe law having prescribed no rules and regulations, and tbe Governor having no such power by “ virtue of bis office alone,” could not remit tbe fine in this case.

That a note in ordinary cases, is' a payment when so received, is res adjudicaba. See Peal Estate Banh vs. Pcmdon et al., 5 Arh. 559.

But, in this case, tbe note was a valid and proper mode of payment, because, by law, tbe fine was directed to be paid into tbe county treasury, for tbe use of common schools; and the county treasurer and ex officio treasurer of tbe school fund, was, by law, directed to loan the'same at 10 per cent, interest, and, before tbe pardon by tbe Governor, tbe fine in this case was paid by tbe defendant, and loaned to him according to law, and so intended by tbe parties, without tbe formality of tbe defendant banding the money to tbe county treasurer, and be banding it back.

Me. Chief Justice ENGlish

delivered tbe opinion of tbe court.

Josiab A. Scoggin, suing for tbe use of John H. Holcomb, bis *429successor in. office, as comity treasurer, and ex officio treasurer of • the scbool fund of Ouacbita county, brought an action of as-sumpsit in the Ouachita Circuit Court, against G-'eorge W. Baldwin, Nobert E. Armstrong, and John Gr. Banks, upon a promissory note.

The declaration alleged that,_on the 8th day of October, A. D. 1852, the defendants made their promissory note, of that date, and thereby promised to pay, twelve months thereafter, to Scog-gin, as county treasurer, and ex offieio treasurer of the school fund of Ouachita county, the sum of $ 210, with interest at the rate of ten per cent, per annum, payable half yearly in advance, and delivered said note to said Scoggin, &c.

The defendants pleaded non assumpsit, and a special plea, alleging, in substance, as follows:

That the defendant, George W. Baldwin, together with one James Baldwin, were indicted, at the spring term of the Ouachita- Circuit Court, 1852, for -an assault, with intent to murder one 'William H. Wood; and, at the succeeding term of said court, were both tried and convicted of an aggravated assault, and fined in the sum of $ 321 each, and five minutes imprisonment, and ordered into the custody of the sheriff, until said fine and costs were paid. That said fine, in each case, was subsequently, during the same term, reduced by the court, to the sum of $ 200, and final judgment rendered in favor of the State of Arkansas' therefor; as would more fully appear by the record, &c. That, being' in the custody of said sheriff, 'for the payment of said fine and costs, the said defendant, George W. Baldwin, gave the promissoi’y note sued on, which he executed, with the other defendants as his securities, for said fine, and ten dollars as advance interest thereon for six months, at the rate of ten per cent, per annum, and for no other, purpose, and upon no other consideration whatever; and no money, or other valuable thing was passed between the parties.

That, after the execution of the said promissory note, and the delivery thereof to the sheriff of said county, to wit: on the 22d *430day of October, 1852, Ms excellency, John Selden Roane, tben Governor of tbe State of Arkansas, granted to tbe said defendant, George W. Baldwin, and tbe said James Baldwin, a pardon, in •tbe words and figures following:

Tub State oe Arkansas, to ale to whom these presents shall COME-GREETING:

Whereas j At tbe said term of tbe Circuit Court of tbe county of Ouacbita, George W. Baldwin and James Baldwin, were convicted of an aggravated assault, and sentenced to pay afine of two hundred dollars eacb: and, whereas, many of tbe good citizens of said county bave petitioned for tbe remission of said fine,' not -only on tbe ground of its enormity, but tbe injustice of tbe verdict : Now, therefore, I, John Selden Roane, Governor of tbe State «f Arkansas, in consideration of tbe premises, and by virtue of tbe authority in me vested by tbe constitution of said State, do hereby remit said fine, and freely and fully acquit tbe said George W. Baldwin, and James Baldwin, severally, from tbe payment «of all the pains and penalties thereof. Tbe sheriff of said county, «and all others, are hereby commanded to desist from all proceedings in tbe collection and enforcement of said fine.

[jXi S 3

In testimony whereof, I bave hereunto set my band, anc^ cailse(^ ^ie sea^ State to be affixed, at Little Rock, on tbe 22d day of October, A. D. 1852.

By tbe Governor. JOHN S. ROANE.

David B. Greer,

Secretary of State.

Which said pardon, or letters patent, accepted by said Baldwin, \the plea further alleges,'] are under tbe great seal of tbe State, and shown to tbe court, &c.

Tbe plea was verified by affidavit.

*431To this special plea, tbe plaintiff demurred, on tbe grounds:

1st. That tbe Goyernor bad no authority, by tbe Constitution and laws of tbe State, to remit said fine. 2d. That tbe fine bad been paid by Baldwin, before tbe granting of tbe pardon or remission of it by tbe Goyernor.

Tbe court sustained tbe demurrer to tbe plea, tbe defendants rested, and suffered final judgment for tbe amount of tbe note-sued on; and appealed to this court. .

It is argued by tbe counsel for tbe appellee, that tbe Goyernor bas no power to remit fines, because no regulation for their remission, by him, bas been made by tbe statute.

On the organization of fibiost governments, it bas been deemed' wise and humane to lodge a pardoning power somewhere, in order that tbe innocent may be relieved from punishment, where it is made manifest, after conviction, that they were unjustly condemned ; and in order that, in proper cases, that mercy and clemency might be extended to th§ offender, which cannot be granted to him by tbe administrators of tbe law, under its stern sanctions.

In tbe country from which we have derived our language, our laws, and, to a limited extent, oar forms of government, tbe pardoning power is vested in tbe king. If was exercised by him,, from a remote period, and it was declared, in Parliament, by statute 27 Hen. VIII, c. 24, that no other person bath power to-pardon or remit any treason, or felonies whatsoever; but that tbe king bath tbe whole and sole power thereof, united and knit to tbe imperial crown of tbe realm. 4 Black. Com. 397. There were limitations hpon this power, however, in England. Ib. 398.

By tbe constitution of tbe United States, Article 11, sec. 2, it is declared that tbe President “ sball.bave power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

Stoky, in bis Commenta/ries on tbe Constitution, ml. 2, sec. 1504, treating of this clause, after noticing tbe express exception of cases of impeachment from tbe pardoning power of tbe President, and

*432tbe implied exception of contempts, says: “Subject to these exceptions, (and perhaps there may be others of a like nature standing on special grounds,) the power of pardon is general and unqualified, reaching from the highest to the lowest offences. The power of remission • of fines, penalties, and forfeitures, is also included in it; and may, in the last resort, be exercised by the executive; although it is, in many cases, by our laws, confided to the treasury department. No law c<m abridge the constitutional powers of the Executive department, or interrupt its rights to interfere by pardon in such cases.”

Thus it seems that this great prerogative of pardoning offences against the Federal Government, has been intrusted to the President, without reserving to Congress the power to abridge or restrict its exercise.

The framers of our State Constitution,, have entrusted the pardoning power to the Governor, but thought proper to reserve to the Legislature the right to regulate its exercise. The clause on the subject, is as follows: “ In all criminal and penal cases, except in those of treason and impeachment, he (the Governor) shall have power to grant pardons, after conviction, and remit fines and forfeitures, under such rules and regulations as shall be prescribed by law. ” Const. Arle., art. V, sec, 20

The Legislature have thought proper, under the power thus given them to regulate the exercise of the pardoning power, to pass an act as follows : “In all cases, in which the Governor is authorized, by the Constitution of the State, to grant pardons for any offences punishable with death, or imprisonment for six months and over, or with corporal punishment, he may grant the same with such conditions, and under such restrictions, as he tnay thmh proper; and he shall have power to commute the prmishment of persons under the sentence of imprisonment of six months and over, or corporal punishment, by substituting banishment in lieu of the sentence of the court.” Sec. 244, chap. 52, Digest, p. 424. The succeeding seven sections, regulate the terms of banishment.

*433Tbe section above copied, does not touch the remission of fines and forfeitures by the G-overnor, nor- is there any statute regulating their remission; hence, it is argued that he has no power to remit them.

But the above section does not, in truth, regulate the exercise of the pardoning power in cases punishable with death, or imprisonment for sis months or over, or with corporal punishment, but leaves the Governor to the exercise of his own discretion in granting pardons in such cases. That section, and those following, merely regulate commutations, and not pardons.

Tet, the Governor pardoned Edwards, and released him from imprisonment in the penitentiary, on a conviction of manslaughter, absolutely, and without terms; and the power does not appear to have been questioned. See Edwards vs. The State, 7 Eng. R. 122; also Amour Hunt Ex parte, 5 Eng. R. 284.

. If the Legislature had passed no act on the subject of pardons at all, the Governor would thereby hardly be cut off from the exercise of this necessary and humane prerogative, conferred upon •him by the Constitution. The Legislature have the right to regulate the exercise of the power; to throw checks and guards around, it, perhaps, to prevent its abuse; blit theysurely have no right to deprive the Governor of the pardoning power, by neglecting to regulate it, or by passing laws to prohibit it.

The failure of the Legislature to regulate the exercise of the power, would be rather an indication of confidence in' the sound discretion of the executive, than of a disposition to deny to him the right of exercising this humane prerogative.

"We are of opinion, therefore, that the Governor has the power to remit fines under the provision of the Constitution above copied; and, until this power is regulated by law, may exercise it according to his own sound discretion.

The Governor having the power, under the Constitution, to remit the fine in this case, the act, declaring that such fines, when collected, shall be paid into the county treasury, of the proper county, for the use of schools in said county, (see. 48, ehcop. 145, *434Digest,) does not deprive tbe Governor of the power to remit them, as held in State vs. Simpson, 1 Bailey 378, and State vs. Williams, 1 Nott & McCord 26.

But, it is argued, by the counsel of the appellee, that the execution of the note sued on, for the amount of the fine, prior to the remission of it by Governor, and the delivery of the note to the treasuer of the county and ex officio treasurer of the school fund, was equivalent to a payment of the money into the treasury, and a return of it to Baldwin, as a loan, upon security, and that thereby the treasurer of the school fund acquired a vested right to the fine, which could not be divested by the pardoning power of the Governor.

• The plea alleges that Baldwin was convicted, fined $ 200, and ordered into the custody of the sheriff, until-the fine and costs were paid. That, in order to relieve himself from such custody, he made and delivered to the sheriff, the note in question, for the amount of the fine, including advance interest at ten per cent..for six months, and that, shortly after the execution of the note to the sheriff, the Governor remitted the fine. It does not appear, from the allegations in the plea, that the plaintiff, as county treasurer and ex officio treasurer of the school fund, accepted the note from the sheriff, in lieu of the money, but, in order to put this case in the strongest view for the plaintiff, let it be presumed, from the facts, that the note was made payable to him, and that he afterwards sued upon it, that he did accept it of the sheriff in lieu of money — was the execution of such note a payment of the judgment of the court for the fine ?

It is well settled that the sheriff had no discretion or power to receive any thing but money, in satisfaction of the judgment. Randolph vs. Ringgold et al., 5 Eng. R. 279, and cases there cited.

Had the judgment been in favor of, or the money going to, a private individual, he might have accepted, in satisfaction of it, a note, property, or any thing else, that would have answered *435bis purposes, and tbe sheriff, under his instructions, might have received such satisfaction.

But the judgment in this case, was not in favor of, or going to, an individual. It was in favor of the State, and the law declares that, when the money is collected, it shall be paid into the treasury of the proper county, for the use of schools in said county, (sec. 46, chap. 145, Digest,) and other acts provide for its employment in purposes of education .by the proper officers. See Acts of 1852, p. 149, sec. 19, c&c.

The sheriff had no right to receive any thing but money, in satisfaction of tne judgment, and the treasurer of Ouachita county, acting not in his private right, but as an officer, for the benefit of the public, had no authority, by law, to receive of the sheriff, anote in lieu of money — no matter whether he acted in the matter, as treasurer of the county, or treasurer of the school fund. The law provides for, nor recognizes any such transactions. See Rout vs. Feemster, 7 J. J. Marsh. 131.

If this court were to decide that, by agreement between the sheriffs and county treasurers, notes might-be taken in payment of fines, doubtless it would soon become a general practice for offenders, after conviction, to relieve .themselves from custody, by executing such notes ; and appeals to the sympathies of the officers might too often induce them to take insufficient security, to the detriment of the school fund and the public interest. However good the note may have been, in this instance, and with whatever good faith the officer may have acted in taking it, we know of no law to sanction it, and cannot indulge in liberal constructions to uphold a precedent which might be followed by bad consequences.

Holding the note not to have been a payment and satisfaction of the judgment, the fine, for which it was executed, had not passed beyond the pardoning power of the Governor; and the demurrer to the special plea of defendants should have been overruled. Rout vs. Feemster, ubi. sup.

Had the fine actually -been paid to the sheriff, in money, and *436the money paid over to the county treasurer, for the use of public schools, before the remission of it by the Governor, and had Baldwin brought an action to recover back the money, after the pardon, it might have become necessary, in such case, to decide whether the treasurer of the school fund, or the inhabitants of Ouachita county, had acquired any such vested right to the money before the pardon, as could not have been divested by it, but the view that we have taken of this case, renders it unnecessary, and perhaps, improper, to decide this question.

The judgment is reversed, and the cause remanded, with instructions to the court below to overrule the demurrer to the special plea, and that the plaintiff have leave to respond ovér, &c.