ment to bring himself within the pardon. On demurrer, judgment was given for the plaintiff. The court said the felony was by pardon extinct; and though the plaintiff was a thief once, "yet when the pardon came it took away, not only poenam but reatum.” It is clear, however, that the court meant only that the legal infamy of the conviction was removed, not that the offender was "as innocent as if he had never committed the offense." It is said in the report: "It was said, that he could no more call him thief, in the present tense, than to say a man hath the pox, or is a villain if he be cured or manumised, but that he had been a thief or villian he might This distinction between the use of the present and the past tense has been followed both in England and in this country. In a New York case decided in 1843,91 it was held that it was not actionable for one person to say that another had stolen an axe several years before, where this statement was true and the latter had been convicted but later pardoned. The court in this case said that if the words had been "you are a thief," or "he is a thief," they could not be justified by proving a felony for which the plaintiff had been pardoned. So in England it has been held that for an editor to call a rival editor a "convicted felon," was not actionable where the rival had been convicted of felony but later pardoned; but to call him a "felon editor" was libel.92 Eligibility to military service.-Under the Federal law providing that "no person who has been convicted of a felony shall be enlisted or mustered into the military service," 93 the Attorney General has given it as his opinion that a pardon does not restore such eligibility. "An unconditional pardon abates whatever punishment flows from the commission of the pardoned offense, but can not in the nature of things eradicate the factum which is made a criterion of fitness. However, disqualification to receive benefits under Do Id. at 82. 9 Baum v. Clause, 5 Hill 196 (N. Y. 1843). 82 Leyman v. Latimer, 3 Ex. Div. 15, 352 (1877); 5 Cent. Law Jour. 74; 6 Cent. Law Jour. 181. 93 U. S. C.. tit. 10, § 622. 94 39 Opinions Att'y Gen., No. 33 (1938). the World War Veterans' Act is made a "penalty" by the act, and is removed by a pardon.95 During the World War, regulations under the Selective Draft Act placed men convicted of felony in a deferred classification. It was held, however, that where the offense had been pardoned, it was "blotted out" and the person was to be classified as if he had not been convicted. "As a full pardon restores one to all his civil rights and blots out the existence of guilt, it is inconceivable that it was intended by the regulations that a person who had received a full pardon should be deprived of one of a citizen's greatest privileges, to bear arms in the defense of his country.96 It would seem, however, that it was the purpose of the act to put convicted criminals in a deferred classification. This was not a "punishment" or other legal consequence of conviction, but a classification on the basis of character, and the pardon (unless granted for innocence) should not have been allowed to obscure the fact that the defendant was a person of the type which Congress felt should be placed in a deferred class. Immigration and deportation laws.-The immigration laws exclude from admission into this country aliens "who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude," and provide for the deportation of such aliens if they gain entrance without immediate discovery. It is held that the fact that the alien was pardoned of the crime does not wipe out his disqualification.97 Naturalization.-Under a statute requiring as a condition of naturalization that the alien seeking to be naturalized must prove that he has behaved as a man of good moral character during his residence in the United States, it has been held that a pardoned convict is not eligible. The court, after quoting the dictum in Ex parte Garland 9s that a pardon blots out the offense and makes the offender a new man, nevertheless concluded: "And yet I do not sup 536 Opinions Att'y Gen., No. 193, 195. U. 8. ex rel. Schwartz v. Commanding Officer, 78th Division, 252 Fed. 314 (1918). "U. 8. ex. rel. Palermo v. Smith, 17 F. (2d) 603 (1927); Weedin v. Hampel, 28 F. (2d) 603 (1928). 84 Wall. 333, 380 (1866). pose the opinion is to be understood as going the length of holding that while the party is to be deemed innocent of the crime by reason of the pardon from and after the tak ing effect thereof, that it is also to be deemed that he never did commit the crime or was convicted of it. The effect of the pardon is prospective and not retrospective. It removes the guilt and restores the party to a state of innocence. But it does not change the past and cannot annihilate the established fact that he was guilty of the offense." " This decision seems correct. Here again the question in issue is not conviction, but character. Effect on other crimes.-A pardon applies only to the offense therein mentioned. Obvious as this may seem, it has been argued in some early cases that a pardon for one offense operates as a pardon of all other offenses theretofore committed. Some historical basis for this view is found in old English law. There the doctrine that conviction and pardon of one felony merged all others previously committed was founded on the concept of corruption of blood. The party having forfeited all his goods and chattels by the first conviction was not subject to the same punishment again.1 But the concept of corruption of blood having no standing in this country, this effect of a pardon is also denied.' A question may arise as to the effect of a pardon for one crime upon other related crimes arising out of the same act. It has been held that a pardon for an assault, where the person assaulted later dies and the offense becomes murder, does not operate to pardon the murder. However, a general pardon, covering all felonies and misdemeanors committed before a certain day would pardon a homicide from a wound given before the day, even though the death occurred thereafter, for the homicide relates back to the time of the criminal act which caused it. If the pardon had covered only misdemeanors, it would include the stroke, but not the murder, which is a felony.* "In re Spenser, 5 Sawy. 195, 199, Fed. Cas. No. 13234 (1878). 14 Bl. Comm. 336, 337, 375. 2 Hawkins v. State, 1 Port 475 (Ala. 1835); State v. Foley, 15 Nev. 64 (1880); State v. McCarty, 1 Bay 334 (S. C. 1793); Ex parte Weimer, 2 Biss. 321, Fed. Cas. No. 17,362 (1878). 3 Comm. v. Roby, 29 Mass. (12 Pick.) 496 (1832). Bacon's Abr., Pardon, vol. 6, p. 140. Effect on other parties-Accessories.-Although all felon- The pardon of a defendant discharges his sureties from Effect in other jurisdictions.—A pardon granted by the Effect of serving sentence.-In England and in Pennsyl- B Syer's Case, 4 Coke 43 b (1589); Goff v. Byby, Cro. Eliz. 540 (1596); 2 • Comm. v. House, 10 Pa. Super. 259 (1899). Comm. v. Hargis, 137 Ky. 1, 120 S. W. 294 (1910); 2 Hawkins P. C., ch. See State v. Foley, 15 Nev. 64 (1880); Neb. Comp. Stat. (1929) § 29–113. 10 U. 8. v. Perkins, 17 Fed. Supp. 851 (1936). 11 Cowan v. Prowse, 93 Ky. 156, 19 S. W. 407 (1892); Jones v. Board of have the same effect as a pardon.12 The purpose of such legislation is undoubtedly to restore civil rights of convicts who have served their sentence without the necessity of a specific pardon in each case. The courts have construed these statutes very literally, however, to give all the effects of an actual pardon. Thus in England it has been held that it call an editor who has served his sentence for felony a "felon editor" is libel; 13 and in this country a Federal court has held that under the immigration law providing for deportation of aliens convicted of felony involving moral turpitude, an alien convicted of such a crime in Pennsylvania who has served his sentence cannot be deported because he has been "pardoned." 14 Under such statutes, the dictum that a pardon absolves from guilt as well as from punishment becomes even more glaringly objectionable. To say that a man who has been convicted for crime, and has served his sentence, thereupon becomes "as innocent in the eyes of the law as if he had never committed the offense" is absurd. It is much better to say that such service of sentence has only the effect which the majority of courts have in fact given to a pardon not granted for reason of innocence: That it absolves from further punishment and restores civil rights, but does not magically undo what is past or blot out of existence what is a fact that the person has committed a crime and been sentenced and punished for it. SUMMARY That a pardon absolves from all further punishment or other direct legal consequences of the conviction is clear. The difficulty arises from the oft-repeated statement that it also absolves from guilt-that it "blots out" the offense, so that in the eyes of the law the pardoned criminal is a “new man," and as innocent as if he had never committed the offense. Although this broad dictum has been very widely repeated, most courts when actually confronted with a case in 19 Geo. IV, ch. 32, § 3; Pa. Stat. Ann. (Purdon, 1930) tit. 19, § 893. The English statute excepts capital crime; Pennsylvania excepts first-degree murder and perjury. 13 Leyman v. Latimer, 3 Ex. Div. 15, 352 (1877). U. S. v. Perkins, 17 Fed. Supp. 851 (1936). |