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“Every hostile act of the inhabitants against the German military forces and every attempt to disturb their communication with Germany or to embarrass or destroy railroads or telegraph or telephone service will be punished very severely. Any resistance or revolt against German administration will be repressed without pardon. It is the hard necessity of war that punishment for hostile acts strikes both the guilty and the innocent. Thus on all reasonable citizens the duty is the more clearly imposed of repressing the turbulent in order to keep them from any attack on public order.” An ordinance dated October 3, makes German coin and paper money a legal tender. One of September 30, prohibits exporting horses and food. One of October 26, provides that enumerated articles, useful for military purposes, must not be exported without permission, and may be seized by the Government, payment being made at prices fixed by a commission appointed by the war department in Berlin. One dated November 3, forbids making remittances to Great Britain or France. One dated! November 12, provides for the continuance of the taxes for the support of local administration. One dated December 22, revokes the power of La Banque Nationale de Belgique to issue bank notes, reciting that this bank had transferred a great part of its assets to London, but continues the legal quality of the bank's notes “legally issued.”
Indeed, almost all enactments are obviously connected with war.
One, however, is of a wholly different character. It is dated December 15, and it puts into force from January 1, 1915, with minute detail, a Belgium law of May 26, not then promulgated by the Belgian government, amending in minute details the law as to work by women and children, especially in mines, factories, dangerous occupations, etc.
In short, as was to be expected, the legislation by the Germans in the period covered by this volume, though dealing with both military and civil interests, makes no attempt to change the great body of Belgian law, and deals almost exclusively with emergencies.
THE LAW OF WILLS AND THE ADMINISTRATION OF ESTATES. By William
Patterson Borland. Enlarged Edition. Kansas City: Vernon Law Book
Company. 1915. pp. XV, 723. THE RIGHTS AND REMEDIES OF CREDITORS RESPECTING THEIR DEBTORS'
PROPERTY. By Garrard Glenn. Boston: Little, Brown, and Company.
1915. pp. xlvi, 461. NATIONAL Tax ASSOCIATION. Proceedings of the Eighth Annual Conference.
Madison, Wis.: National Tax Association. 1915. pp. 499. A POCKET CODE OF THE RULES OF EVIDENCE. By John Henry Wigmore.
Massachusetts Edition. By Charles N. Harris. Boston: Little, Brown, and Company. 1915. pp. cii, 970.
It has been said by the Supreme Court of the United States in a
“A pardon reaches both the punishment prescribed for the offence and the guilt of the offender. . . . It releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. . . . It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity.” and these words have been often quoted subsequently.?
There is in the human mind a love of paradox which finds its expression in all professions. In the law there has been a vast
1 Ex parte Garland, 4 Wall. 333, 380 (1866).
The Supreme Court at an earlier day had expressed through Chief Justice Marshall more accurately the nature of a pardon.
'A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed." United States o. Wilson, 7 Pet. 150, 159 (1833).
This statement has been quoted as an accurate one in Burdick o. United States, 236 U. S. 79, 89 (1915).
2 Illinois Central R. v. Bosworth, 133 U. S. 92, 103 (1890); Ex parte Weimer, 8 Biss. 321, 324 (1878); In re Spenser, 5 Sawy. 195, 199 (1878); In re Executive Communication, 14 Fla. 318, 319 (1872); Singleton o. State, 38 Fla. 297, 302, 21 So. 21, 22 (1896); United States v. Athens Armory, 35 Ga. 344, 363 (1868); People o. Court of Sessions, 141 N. Y. 288, 294, 36 N. E. 386, 388 (1894); Knapp v. Thomas, 39 Oh. St. 377, 381 (1883); Wood v. Fitzgerald, 3 Ore. 568, 577 (1870); Diehl v. Rodgers, 169 Pa. St. 316, 322, 32 Atl. 424, 426 (1895); Carr v. State, 19 Tex. App. 635, 661 (1885); Edwards v. Commonwealth, 78 Va. 39, 43 (1883).
deal of it and there is still too much. When it is said that “In the eye of the law the offender is as innocent as if he had never committed the offence,” we have something of the sort. It is asserted that the law regards as true what is inherently false. Everybody knows that the word “pardon" naturally connotes guilt as a matter of English. Everybody also knows that the vast majority of pardoned convicts were in fact guilty; and when it is said that in the eye of the law they are as innocent as if they had never committed an offence, the natural rejoinder is, then the eyesight of the law is very bad.
It may perhaps be supposed that this is a mere criticism of language and that the substance of the statement is merely that the law will impose no more penalty upon the offender than it would upon an innocent man. If no more than this is intended, then the latter form of expression should be used; for the language criticised, if its natural meaning is accepted, means more than this and, as will be seen, endeavors have frequently and sometimes successfully been made to carry this language to logical consequences productive of highly undesirable results. If the offender really is to be treated as an innocent man after his pardon, the offence which he has committed cannot properly be made ground for removing him from the office of an attorney or trustee, or from any other office. He not only cannot be disqualified as a witness, but proof of his conviction should not be allowed to discredit him. If an alien, he should not be debarred from naturalization.
Though the language of the Supreme Court of the United States is perhaps the most extreme statement which has been made of the effect of a pardon, it was not made without some warrant from English precedents; but even if these precedents fully justified the conclusions which have been drawn from them, the conclusions should be attacked as inherently wrong. There is, however, greater reason for such an attack if it can be shown that to a considerable degree the early precedents have been misunderstood, or departed from. The truth seems to be as Lord Coke says, “Poena mori potest, culpa perennis erit.” 3 But confusion has been caused
3 Brown o. Crashaw, 2 Bulst. 154 (1614). See also the definition of Marshall, C. J., quoted (p. 647, n. 1) from United States v. Wilson, 7 Pet. 150 (1883), quoted with approval in Burdick v. United States, 236 U. S. 79, 89 (1915); People o. Bowen, 43 Cal.
439, 442 (1872); Territory o. Richardson, 9 Okla. 579, 584, 60 Pac. 244, 245 (1900); ' and language quoted infra, p. 658, n. 41, from Cook o. Middlesex, 2 Dutch. (N. J.) 326, because certain punishments which the law attached to crime were of a general sort affecting civil capacity. These consequences of the legal infamy of the convict were disposed of by the pardon, in the same way as other punitive consequences of conviction.
The earliest statement of the English law of pardon is made apparently by Bracton, who wrote in about the middle of the thirteenth century. He says of the effect of a pardon:
“But in all the aforesaid cases, whatever may have been the cause, when the outlawry has been made duly and according to the law of the land, a person is not restored except to the king's peace alone, that he may go and return and contract anew, for that which has been dissolved by the outlawry cannot be joined anew by the inlawry without a new intention on the part of those who have contracted. For the king cannot grant a pardon with injury or damage to others. He may give what is his own, that is his protection, which the outlawed person has lost through his flight and contumacy, but that which is another's he cannot give by his own grace. Likewise a person justly and duly outlawed is not restored to anything except to the king's peace, that he may go and return and have protection, but he cannot be restored to his rights of action and other things, for he is like a new-born infant and a man as it were lately born. Likewise inlawry does not restore a person to his previous actions and obligations, nor to his homage nor fealties, nor to his oaths, nor to other things dissolved by his outlawry, against the will of those by whose will they were previously united and confirmed, and accordingly neither to his inheritances nor to his tenements to the prejudice of the lords, and so they cannot be restored to those things to which they had only a right. But no one is bound to them by preceding obligations, but they are bound to all others, that they may not be in a better condition on account of their outlawry, since they ought to be in a worse condition.”
The phrase in this extract that a pardoned man “is like a newborn infant and a man as it were lately born" seems to be the basis of any subsequent assumption that a pardoned offender is to be regarded as an innocent man. The extract, however, shows clearly
331 (1857). Contrast, however, with these expressions the denial by Mitchell, J., in Diehl v. Rodgers, 169 Pa. St. 316, 319, 32 Atl. 424 (1895), of the correctness of Coke's statement that the guilt remained; and also the statements inconsistent with Coke's which are criticised in this article.
When, therefore, the judgment is pardoned, the legal infamy flowing from it, is equally disposed of by the pardon." People v. Pease, 3 Johns. Cas. (N. Y.) 333, 334 (1803).
5 Twiss's translation, vol. 2, p. 371.
enough that the writer's idea was not that the offence was regarded by the law as not having been committed, or even as no longer existing, but that the offender, so far as concerned the future, acquired the legal capacity of an innocent man. At a time when conviction destroyed civil rights this was a very important matter. There is nothing fictitious in Bracton's statement, and in view of the criminal law of the time, his analogy of the new-born infant is not inappropriate. The following extract from Pollock and Maitland's History 6 indicates also clearly enough that the eye of the law was not formerly so blind as to be unable to see that a pardoned felon had committed the crime of which he had been convicted.
“The king could not protect the man-slayer from the suit of the dead man's kin. Even when the pardon was granted on the score of misadventure, this suit was saved by express words. Proclamation was made in court inviting the kin to prosecute, but telling them that they must come at once or never. What could the kin do in such a case? They could make themselves extremely disagreeable; they could extort money. In Henry III.'s day Mr. Justice Thurkelby was consulted by a friend who had obtained a pardon, but was being appealed. The advice that the expert lawyer gave was this: 'You had better go to battle; but directly a blow struck cry “Craven” and produce your charter; you will not be punished, for the king has given you your life and members.'
Early in the reign of Edward III, it was ruled that one appealed of felony who broke prison should lose his right of battle, but if pardoned by the king, his right was restored. Here it will be noticed that there had never been a conviction of felony, and the ground of decision seems to be that breaking prison was an injury to the king only and he had pardoned it.
In 1410 8 the validity of indictments presented by a grand jury of which one member was outlawed and another a pardoned felon was drawn in question and the conclusion of the case is as follows: “And then on the opinion of all the justices, since one of the indictors was outlawed and another was excused and acquitted by the benefit of a general pardon, so that they were not probi et legales homines to inquire as the law wishes, it was awarded that all the indictments by them shall be taken as annulled.”
6 Vol. 2, p. 481.
11 Hen. IV, fol. 41 b, pl. 8.