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A Pardon Not Accepted

John Collins3/6/2012 4:57:00 PMThough it is a good, touching story, the "Pardon not received" story told so many times is not historically accurate.

You remember the pardon that the man was shot, that I sometimes tell, during the civil war when he was a good man? He was innocent, and they found him guilty, although he was guilty in a way, that he run away in time of battle. And they found him guilty and was going to shoot him. And a man went to President Lincoln and said, "Mr. Lincoln, this is a Christian man. He was scared, the boy. I know his people. He was just afraid. He didn't mean no harm. He run away." Said, "Mr. Lincoln, it's in your hands. You're the only one can pardon him." Mr. Lincoln picked up a piece of paper and his pen and signed, "Pardon this So-and-so. Abraham Lincoln."
He ran back to the jail, and he said, "Here it is. I got your pardon."
And the man said, "I refuse to look at it. It would have a big seal on it. It would be everything. You're only trying to make me a laughing stock. It is not Abraham Lincoln. Anybody could sign his name, but it would have to be documented by his seal and so forth if it comes from him." And the man persuaded him, though the man in the prison thought he was kidding, and just walked away. The next morning he was shot. And then after he was shot, then there was a Federal Court trial, because Abraham Lincoln, twenty-four hours before the man was shot, signed his name that this man was pardoned. And then the government shot him anyhow. Then what? Then the Federal Court of the United States said-come to this decision of the Federal Court, said, "A pardon is not a pardon unless it be received as a pardon."
61-0730M Gabriels Instructions To Daniel

The first time this issue came to the Supreme Court was in 1833 during Andrew Jackson's presidency. Some interesting things to note:
    *The defendant was not innocent. He was caught stealing and reading US postal mail, and endangering the postal worker.
    *There is no record that the president knew his family, or that he even was a Christian
    *The pardon was not hand-written on a hand-written note, it was an official document with president's seal.
    *In 1927, the Supreme Court ruled that a pardon did not have to be accepted by the recipient, it was the decision of the courts.

Supreme Court Ruling:
United States v. Wilson, 32 U.S. 7 Pet. 150 150 (1833)
The defendant was indicted for robbing the mail of the United States, and putting the life of the driver in jeopardy, and the conviction and judgment pronounced upon it extended to both offenses. After this judgment no prosecution could be maintained for the same offense, or for any part of it, provided the former conviction was pleaded.
The power of pardon in criminal cases had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance. We adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. 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. It is the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the court.

Pardon from Andrew Jackson:
"Andrew Jackson, President of the United States, to all who shall see these presents, greeting:"
"Whereas a certain George Wilson has been convicted before the Circuit Court of the United States for the Eastern District of Pennsylvania of the crime of robbing the mail of the United States, and has been sentenced by the said court to suffer the penalty of death on 2 July next, and whereas the said George Wilson has been recommended as a fit subject for the exercise of executive clemency by a numerous and respectable body of petitioners, praying for him a remission of the sentence of death, inasmuch as, in such a case, sentence of imprisonment for twenty years may yet be pronounced against him on the indictments to which he has pleaded guilty in the circuit court of the United States for the said district, and a still more severe imprisonment may be awarded him for the same acts in the criminal courts of Pennsylvania, now therefore, I, Andrew Jackson, President of the United States of America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, have pardoned and do hereby pardon the said George Wilson the crime for which he has been sentenced to suffer death, remitting the penalty aforesaid, with this express stipulation, that this pardon shall not extend to any judgment which may be had or obtained against him in any other case or cases now pending before said court for other offenses wherewith he may stand charged."
"In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed to these presents. Given at the City of Washington this 14 June, A.D. 1830, and of the independence of the United States the fifty-fourth."

Commentary on Biddle v. Petrovich (1927):
There is, however, an apparent limitation on the Burdick rule as applied in the law of commutations. In Biddle v. Petrovich (1927), the recipient of a Presidential commutation of sentence from death to life imprisonment claimed it was invalid because he had not consented to the commutation. The Supreme Court ruled that his consent was not required. Mr. Justice Holmes wrote: "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed...Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent determines what shall be done." This logic could theoretically be applied to pardons as a whole, but the Supreme Court has not yet overruled Burdick.