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justice to the accused. There are no bonâ fide purchasers to be considered. No property rights will be disturbed. And while in civil suits the original winner will reluctantly part with his gains, and may feel harshly treated in being disturbed after the lapse of time, however unjust the original decision may have been, the government loses nothing which it should care to keep in reversing an unjust conviction of crime, when the injustice first appears, whether that is early or late. It is not only the case of an innocent man who has been convicted which makes desirable a statute enlarging the powers of a criminal court, but the case of a defendant whose innocence is not clear and whose trial has been unfair. Newly discovered evidence after the end of the term may show a degree of bias or disqualification on the part of jurymen for instance which should require a new trial. In such a case it is unjust to treat the conviction as final, and it is unsatisfactory to pardon one whose innocence is not clear. The matter has been accurately stated by the Supreme Court of Indiana.

"The power to pardon does not exclude the right to hear and determine; both powers may concurrently exist. Nor is a pardon always adequate relief. An innocent man suffering from an illegal sentence, procured by fraud or extorted by violence, may desire a trial and an acquittal which shall remove from his character the stain of guilt, and this the exercise of the pardoning power cannot do. To pardon is to exercise executive clemency; it is an act of mercy. An acquittal is the vindication of a right, the award of justice. Again, the executive may not feel warranted in turning a condemned criminal loose, and as he can grant no new trial, this he must do or deny a pardon. The Court need not discharge, but may put the accused again to trial. We cannot believe that the power to pardon was meant to cover every case of an unjust conviction, where the accused had, without fault on his part, not availed himself of the right of appeal.” 48

The fact that a pardon may not infrequently be the only redress which is open to an innocent man operates not only as an injustice to the innocent, but, as has been said, probably exerts a retroactive influence towards the continuance of the notion that a pardon makes a convict into a man of good character. Thus, as a reason for his decision that in spite of an Act of Parliament providing that convicts should forever be disqualified from selling spirits at retail, a pardoned convict might be licensed to do so, Hawkins, J., said:

48 Sanders v. State, 85 Ind. 318, 322 (1882).

“To treat it (the pardon) otherwise would be contrary to what certainly must have been the intention of the legislature; for I cannot believe that it was the intention of the legislature that if a man had the great misfortune to be wrongly convicted, and was pardoned on the ground that the conviction was wrong, the Queen's pardon, although absolving him from the pains of imprisonment, should nevertheless leave him to suffer the penal effect of his conviction by being prevented, in future, from following his avocation, notwithstanding the rectification of the error which had occurred. It has been argued that the Queen's pardon may be granted for other reasons than innocence, - that a notorious thief may have received the Queen's pardon in consideration of his having informed and given evidence against his accomplices. I do not know how that may be. Perhaps if he had been convicted, and suffered part of his sentence, and shewn contrition, some remission of his sentence rather than a Queen's pardon would be granted.” 49

A residence in South Carolina in recent years would perhaps convince one who shared the views of Hawkins, J., that sometimes in this country at least pardons are granted for other reasons than innocence.

It may be added that Hawkins' suggestion is at variance with the views expressed in the early books. A pardon “affirms the verdict and disaffirms it not." 50 A distinction in this respect was taken between an act of general pardon and a pardon of a particular offence. In the former case there was no presumption of guilt, but “the procuring of a special pardon doth presuppose, and it is a strong presumption that the party is guilty of the offence.” 51 In a recent decision the Supreme Court of the United States expressed the same view of the matter.52

The doctrine that a pardon improves a man's character is the

49 Hay v. Justices, 24 Q. B. D. 561, 567 (1890).
50 Searle v. Williams, Hob. 288, 293 (1618).
51 Sir Henry Fines' Case, Godbolt 414 (1623).

52 In Burdick v. United States, 236 U. S. 79,90 (1915), the court, upholding the right of one accused of crime to refuse to accept a pardon, said (without italics): “Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, — (the accused) preferring to be the victim of the law rather than its acknowledged transgressor — preferring death even to such certain infamy.”

more objectionable because of the possible argument that a criminal who has served the sentence imposed upon him has expiated his crime, and is therefore in as good a position as if he had been pardoned. Indeed in England a statute expressly so provides.53

Samuel Williston. HARVARD LAW SCHOOL.

53 See Leyman v. Latimer, 3 Ex. D. 15, 17 n. (1877). 9 GEO. IV, c. 32, § 3 recites: “Whereas it is expedient to prevent all doubts respecting the civil rights of persons convicted of felonies not capital, who have undergone the punishment to which they were adjudged,” and enacts that one who has been “convicted of any felony not punishable with death, and hath endured ... the punishment . . . adjudged .. the punishment so endured . . . shall have the like effects and consequences as a pardon under the great seal as to the felony whereof the offender was so convicted.”


GENERAL A power of appointment exercisable only by will

is void if the person to whom the power is given was unborn at the time when the instrument from which the ower is derived took effect. The reason is that nothing can vest in any one under an exercise of the power except upon an event that may happen beyond the limit allowed by the rule against perpetuities. The effect is the same as if the instrument had contained a gift to the person himself, dependent upon an event that could not be ascertained until his death.

But it has been said in recent text books that a general power exercisable by deed or will may be given to the unborn child of a living person, and that the power will be valid although it may not be exercised until after the legal period. This proposition was stated in Farwell on Powers in 1874 in this form: “A power of appointment among children is well executed by an appointment to one of them for life, with power to dispose of the capital by deed or will, whether such children were in esse at the creation of the power or not; for this in effect gives the whole beneficial interest to the appointee, and does not transgress any rule against perpetuity.” ? Mr. Marsden followed in 1882 with the statement that a "general power of appointment exercisable by deed or will may be limited to an unborn person, provided he is to be born within the legal period,” 3 and Mr. Gray says that a general power given to the unborn child of a living person to appoint by deed is not obnoxious to the rule against perpetuities. A

The only authority that is cited in support of this proposition is Bray v. Bree, which was decided by the House of Lords in 1834.

| Morgan v. Gronow, L. R. 16 Eq. 1, 9-10 (1873); Wollaston o. King, L. R. 8 Eq. 165, 169-170 (1869); Tredennick v. Tredennick, (1900) 1 Ir. 354, 362.

? FARWELL, POWERS, 1 ed., 227, 257; 2 ed., 292, 322.
4 GRAY, PERPETUITIES, $8 477, 524.

58 Bli. 568; 2 Cl. & F. 453; s. c. nom. Bray v. Hammersley, 3 Sim. 513, 518 (1830).

Mr. Gray mentions, however, in the first edition of his book, that the question of remoteness was not suggested in the case either from the bench or at the bar. Any authority that may be derived from the case must therefore rest on the assumption that the point was involved in the decision and must have received the consideration of the House of Lords. But an examination of the case will show that no such point was involved in it. It was not a case in which a mere power, in the ordinary sense of the word,” was limited to an unborn child, but the entire beneficial interest in the property was given to the child, who was then a married woman, for her separate use, with the power of disposition incident to the separate estate of married women. No question of perpetuity could have arisen as to the time of her exercising her right to dispose of her own property.

Her interest was derived from her mother's marriage settlement, by which a fund of £8000 was settled upon trust, after the deaths of the husband and wife, for the children of the marriage in such shares, and with such conditions, restrictions, and limitations for their benefit, as the wife, if she survived her husband, should by deed or will appoint. The wife survived the husband, and, after the marriage of her daughter, who was the only child, appointed by deed that the trustees should stand possessed of the fund (subject only to her own life interest) as follows:8 “upon trust immediately after her decease . . . to pay, assign, and transfer the said trust monies and securities in such manner and form as Sarah Eliza Bray [her daughter) ... by any deed or deeds, or writing or writings, with or without power of revocation, to be by her sealed and delivered in the presence of and attested by two or more credible witnesses, or by her last will or testament ... to be by her signed and published in the presence of two or more credible witnesses, should direct or appoint; and in default of such direction or appointment and in the mean time until any such direction or appointment should be made . . . upon trust during the life of the said S. E. B. to receive and pay, apply, and dispose of the interest and yearly income of the said trust monies and securities ... into the proper hands of her the said S. E. B., or otherwise to permit her to receive and take the same to and for her sole and separate use . . . and from and after the

6 GRAY, PERPETUITIES, I ed., $ 524. 7 See Freme v. Clement, 18 Ch. D. 499, 504 (1881). 8 8 Bli. 569-570; 3 Sim. 516.


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