
    Commonwealth v. Fowler.
    [November, 1785.]
    Conditional Pardon. — 'The governour cannot pardon upon'condition : for the condition is void, and the pardon absolute.
    Fowler was convicted of felony in the general court; and obtained a pardon from' the governour, of which the following is an extract, viz:
    “Whereas John Fowler, late of the parish of Fredericksville, in the county of Albe-marle, labourer, was, at a session *of the general court holden on the 27th day of April in the year of our Ford, one thousand seven hundred and eighty-five, attainted of felony, and he appears to be a proper object of mercy: Now know ye, that I have therefore thought fit by and with the advice and consent of the council of state to pardon the said John Fowler for the felony aforesaid, hereby releasing and discharging him from all pains, penalties, forfeitures or executions which might have been inflicted or imposed upon him, had these letters of pardon never been made. Nevertheless it is to be understood, that this pardon is granted on the express condition that he the said John Fowler, shall forthwith submit himself to such authority, as the executive shall put over him for the purpose of confining him to labour bodily in such manner, and on such works as a majority of the directors of public buildings shall direct, and he shall continue to work therein as a common labourer for the space of three years, and shall not be absent therefrom at any time without due license first obtained.”
    Dpon the motion of the attorney general for an award of execution upon the said indictment, the prisoner pleaded the pardon aforesaid. The attorney general replied, “that the said letters of pardon were .granted unto him the said John Fowler by the governour or chief magistrate of the commonwealth of Virginia, with the advice and consent of the council of state, according to the time, manner and form in the said letters of pardon expressedbut saith that the said John Fowler, on the twenty-fourth day of July in the year of our Lord 1785, at the parish of Henrico in the county of Henrico, did break the condition of the said letters of pardon, by not submitting himself to such authority as the executive had put over him for the"purpose of confining him to labour bodily in such mafaner and on such works as a majority of the directors of the public buildings had directed, and by not continuing to work therein as a common labourer for the space of three years, and by absenting himself therefrom, without due license first obtained.” The prisoner ^confessed that the replication was true; and the record then proceeds as follows: “It is agreed between the said attorney general and the said John Fowler with the approbation of his counsel, and with the consent of the court, that if the court shall be of opinion that the condition to the said letters of pardon annexed are not sufficient and binding in law, and that thereby the said letters of pardon are an absolute discharge of the said John Fowler from the pains, penalties and forfeitures incident to the felonj>- aforesaid, he the said John Fowler shall go thereof without day, otherwise that execution shall be awarded de novo.” The general court adjourned the case, for novelty and difficult}', to the court of appeals.
    The attorney general contended, that the pardon was upon condition ; and that it had no effect until the condition was completely performed.
    The counsel for the prisoner contended, that the pardon was absolute; and the condition void, as the executive had no authority to pardon, upon condition. That the constitution provided for pardons simply; and that, in the present case, the language of the letters patent was positive, and put the liberty of the prisoner beyond the control of the executive.
    
      
      Conditional Pardon. — The principal case is discussed and distinguished by Judge Staples in Lee v. Murphy, 22 Gratt. 795, 806, 807, 812. See also, opinion of Judge Fay in Ball v. Com., 8 Leigh 730.
      Emancipation of Slaves — Conditions Subsequent.— See the principal case cited in fool-note to Forward v. Thamer, 9 Gratt. 537.
    
   The certificate to the general court was as follows,

“It is ordered to be certified, to the said general court, as the opinion of this court, that the condition annexed to the letters of pardon granted the said John Fowler by Patrick Henry esquire, governour or chief magistrate of this commonwealth, is illegal ; and that thereby the said letters of pardon are absolute.”  