
    Knapp v. Thomas.
    A full, unconditional pardon, delivered, is irrevocable ; and where a person imprisoned on a sentence for felony seeks discharge by habeas corpus, based on such pardon, the pardon having been issued by the governor pursuant to the constitution and statute, on the certificate of the physician to the penitentiary that the prisoner is in imminent danger of death, it is not competent in this state, under existing statutes, to impeach such pardon, in such, proceeding, by proof that the physician’s certificate was obtained by false representations of the prisoner, and his fraudulent acts, with respect to his health, such representations having been made, and acts done, for the purpose of obtaining such certificate and such pardon.
    Habeas Corpus.
    Isaac Knapp, at tbe October term, 1877, of tbe court of common pleas of Sandusky county, was convicted of murder in tbe second degree and sentenced to the penitentiary for life. He remained in tbe penitentiary from October 19, 1877, until October 19, 1882, when lie received and accepted a full, unconditional pardon of that date, under the great seal of the state, issued and delivered to him by his Excellency, Charles Foster, Governor of Ohio, and was thereupon discharged from imprisonment and returned to his homo in Sandusky county. On January 23, 1883, the governor, by an instrument under his official seal, informed Noah Thomas, warden of the penitentiary, that the pardon was “ null and void from the fact that it was procured by falsehood and fraud,” and directed him to re-arrest Knapp as an escaped convict. In pursuance of this supposed authority the warden re-arrested Knapp and confined him in the penitentiary on the original sentence. This was done without notice to him or trial or hearing of any sort. On February 1, 1883, Knapp filed in this court a petition against Thomas, in which he states his conviction, sentence, imprisonment and pardon, and also his re-arrest and second imprisonment, without trial or hearing, and asked for a writ of habeas corpus, which writ was allowed and issued, and the case is now for determination on the writ, the answer thereto, and the demurrer to the answer.
    The answer contained two alleged defenses to the writ. One was as follows: “ The pardon referred to in the petition of said Isaac Knapp .... was procured from Hon. Charles Foster, governor of Ohio, by fraud and falsehood in this, to wit, it was falsely pretended to said governor, at the time and before the procurement of said pardon, that said Isaac Knapp was in imminent danger of death, whereas in truth and in fact he was not in imminent danger of death, but was in no danger thereof. He said Knapp, for a long time prior thereto, and at the time, feigned sickness. By eating unwholesome articles, and by other devices, he had made himself to appear to bo in imminent danger of death, for the purpose of fraudulently procuring a pardon from the governor of Ohio, and fraudulently inducing the- physician of the penitentiary to make the certificate, and the warden to make the recommendation, referred to in said pardon. . . . Wherefore the defendant says that said pardon is void; that he pursued after and captured the said Isaac Knapp as an escaped convict, and now detains him by virtue of the original sentence.” The other defense was that in consideration of the premises the governor had revoked the pardon. And to the answer so filed Knapp, by his counsel, demurred.
    A provision of the constitution, relating to the powers of the governor (Art. 3, § II.), is as follows : “ He shall have power after conviction, to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions, as he may think proper, subject, however, to such regulations as to the manner of applying for pardons, as may be prescribed by law. Upon conviction for treason, he may suspend the execution of the sentence, and report the case to the general assembly, at its next meeting, when the general assembly shall either'pardon, commute the sentence, direct its execution, or grant a further reprieve. He shall communicate to the general assembly, at every regular session, each case of reprieve, commutation or pardon granted, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve, with his reasons therefor.”
    The chapter of the Revised Statutes relating to the gover- ' nor, provides how pardons shall be applied for, the notice to be given, conditional pardons and commutátions of sentence, and also provides as follows: “ Section 88. In a case in which there is imminent danger of the death of a person imprisoned in the penitentiary, certified by the physician thereof, or otherwise made to appear, and the warden recommends the pardon of such convict, . . . the governor may dispense with any or all of the foregoing provisions governing the granting of pardons.”
    The pardon in question was granted, as appears from the application for this writ and the answer thereto, by virtue of the constitutional provision and the above section of the statute ; and it also appears that in granting it the evidence before the governor consisted of two certificates made by Dr. Norman Gay, physician to the penitentiary, a certificate of Dr. Stamm, and the recommendation of Warden Thomas. The first certificate of Dr. Gay and the certificate of Dr. Stamm were to the effect that Knapp had tubercular- deposits in the right lung, which would soon be followed by softening and abscesses, and that death would result speedily, unless he should be removed from the prison. The recommendation of the warden that the pardon be granted was based on these certificates. And although Dr. Gay supplemented his certificate by an additional paper, to the effect that Knapp had had typhus fever, which had caused a perforation of the bowel and effusion into the cavity of the peritoneum, it appears the governor acted on Dr. Gay’s first certificate and the recommendation of the warden. In his official report to the general assembly as to the pardons granted by him, the governor, in obedience to the constitutional provision, made the following statement: “ Isaac Knapp, crime, murder in the second degree; convicted, October term, 1877, Sandusky common pleas; sentence, penitentiary for life. Pardoned, October 19, 1882, in pursuance of the provisions of section eighty-eight of the Revised Statutes — the physician of the penitentiary having certified that the prisoner was suffering from tubercular deposits of the right lung. The warden of the penitentiary recommended the pardon.”
    The sole question in the case is whether the answer is sufficient, for if it is not, the defendant Thomas, not desiring leave to amend, concedes that the plaintiff, Knapp, is entitled to be discharged from custody.
    
    
      D. O. Jones and G. D. Jones, for plaintiff.
    
      G. K. Wash, attorney general, for defendant.
    
      
       Note by Okey, J. Dr. Gay, physician to the penitentiary, furnishes the information, that in August, 1888, the plaintiff, Isaac Knapp, died in Indiana, and that the statement in his certificate as to Knapp’s condition ■ yras fully confirmed.
    
   Okey, J.

Knapp, by reason of his conviction, became a felon, and was adjudged to undergo servitude and submit to discipline of the most onerous character, within the four walls of a prison, and that for life. At common law his testimony could not have been received in any cause, in any state; and not only was he incompetent to be an elector or a juror, or to hold any office of honor, trust or profit ” (Rev. Stats. § 6797), but he was deprived, for life, of all civil rights, and was indeed civilly dead. By force of the pardon, however, which was full and unconditional in terms, he was “ restored to all his civil rights and privileges.” Id. For a pardon reaches both the punishment prescribed for the offense and the guilt of the offender.” Keep. Garland, 4 Wall. 333, 380. “It obliterates,in legal contemplation, the offense itself.” Carlisle v. U. S., 16 Wall. 147, 151. “In contemplation of law it so far blots out the offense, that afterwards it cannot be imputed to him to prevent the assertion of liis' legal rights. It gives him a new credit and capacity, and rehabilitates him to that extent in his former position” (Knote v. United States, 95 U. S. 149), and hence its effect “ is to make the offender a new man.” 4 Bl. Com. 402. And see U. S. v. McKee, 4 Dillon, 28; Cuddington v. Wilkins, Hobart (1 Am. ed.) 204; 8 Am. L. Reg. N. S.; 513, 577; cf. 86 N. Y. 563. It is, in effect, a reversal of the judgment, a verdict of acquittal, and a judgment of discharge tkeveon, to this extent, that there is a complete estoppel o’f record against further punishment pursuant to such conviction. Though sometimes called an act of grace and mercy, a pardon, where properly granted, is also an act of justice, supported by a wise public policy.

But it is said that this full, unconditional pardon, by force of which Knapp was released from imprisonment, transformed from the condition of a convict to that of a freeman, and restored to his family, was revoked by the governor; and it is claimed, in the answer, that the warden of the penitentiary, by virtue of an order from the governor, purporting to revoke the pardon, and directing Knapp’s re-arrest, lawfully incarcerated him in the penitentiary on the original conviction, and that it was not even necessary that he should have a hearing of any sort. The authorities, however, without any conflict whatever, deny to the governor any such power, and hold the pardon, when delivered, to be irrevocable. No doubt the paper delivered to Warden Thomas was issued-by the governor in perfect good faith, but there is as little doubt that it was a mere nullity. State v. Nichols, 26 Ark. 74; Exp. Reno, 66 Mo. 266; Matter of De Puy, 3 Ben. 307, 316. As Leavitt, J., said in United States v. Hughes, 1 Bond, 574, of the person whose case was then under consideration, we ma.y say of Knapp, that it is far better that he should escape punishment than that a plain principle of law should be set at naught.” Indeed, it would not only be contrary to principle that the governor should be invested with such authority, but the power itself would be of the most dangerous and pernicious character. Great evils would inevitably flow, in ways that may be readily suggested, from the exercise of any such power; and hence, wisely, no such power exists.

The proposition thus stated being undeniably true, how can it be claimed that the warden of the penitentiary, rising above the governor, has authority to treat the pardon as a nullity, by arresting Knapp and confining him in that prison on the original charge? With equal legal right the sheriff might have hung Knapp, if he had been convicted of murder in the first degree and pardoned. Will anybody be bold enough to say that, in such casé, the sheriff might'have defended against a prosecution for the homicide, upon the ground that Knapp had obtained his pardon by devices similar to those stated in this answer? Might a justice of the peace refuse to permit Knapp to sit as a juror, or the trustees of a township or ward refuse his vote, on the ground that his pardon had been obtained by such devices ? To state such propositions is to refute them ; and yet it is impossible to affirm, with any reason to support the claim, that there is greater legal right to offer impeaching evidence in one of these cases than in the others. Indeed, if such collateral attack is permitted, there is no reason why a convict in the penitentiary may not, on habeas corpus, impeach his conviction on the ground that it was obtained by fraud.

The fact is that in seizing Knapp and incarcerating him in the penitentiary, after he had been discharged therefrom on such pardon, the warden was a trespasser from the beginning, and it would be contrary to all principle to permit him to shelter himself behind the sentence, which had become as though it had never been pronounced. If the governor had no power to revoke the pardon, a fortiori the warden had no power to disregard it, and lie could liave no greater protection from the expended sentence after he imprisoned Knapp than when he seized him. Habeas corpus is the appropriate and efficient remedy, and it is as potent to release from such imprisonment as from such arrest. This statement is made after a laborious examination of the whole subject, and I will now trace the steps by which that result was reached.

As already indicated, the claim of the warden is that it is the duty of this court, in this case, in the proper exercise of its powers, to declare the pardon to be void, on the ground that it was obtained, by the flpiud stated in the answer, and thereupon remand Knapp to the-penitentiary, in pursuance of the original sentence. This claim is based on the assumed fact that either (1) the statute of 27 Edward 3, st. 1, c. 2, is in force in this state, and confers the power; or (2) that such power may, by force of the common law, be esercised by this court. Is the claim well founded ?

By the constitution (art. 4, § 2) it is ordained that the supreme court shall have original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, and such appellate jurisdiction as may be provided by law.” The appellate jurisdiction may be large or small, as the legislature, in its wisdom, may determine; but the original jurisdiction cannot be lessened, nor can it be enlarged; the maxim, expressio unius est exclusio alterius, applies. Railroad Co. v. Hurd, 17 Ohio St. 144. This court’s jurisdiction may be properly illustrated in this case by reference to the law relating to the writ of scire facias, which is necessarily founded on some matter of record.” Foster on Sci. Fa. 2; 5 Wait’s Act. & Def, 641. The cases in which that writ is employed are divided into two classes. One class is where the writ is the commencement of an original action, as to repeal letters patent; charters, as a charter of pardon (Howard's Case, T. Raym. 13 ; 17 Vin. Ab. 32); and the like. In the other class scire facias is a judicial writ, to carry on a suit in which some other person lias acquired an interest, to revive a judgment, or for like purpose. In the latter sense, the jurisdiction is constantly exercised in this court by means of orders of revivor and the like. In the former sense, this court has- no jurisdiction to grant the relief obtained through such writ, except by quo warranto, which writ does not extend to such a charter as a pardon. The jurisdiction invoked in Knapp’s case is in no sense appellate, but is original. It is the power of this court in habeas corpus, and that power is in no way aided by its jurisdiction in other matters ; nor is the power on habeas corpus in this court larger than in other courts of the state, or that possessed by a single judge. “ It is proper to say,” as stated by Swan, C. J., in Exp. Bushnell, 9 Ohio St. 77, 181, “ that the supreme court of the state in regular* session have no more judicial power or discretion, in determining questions which arise upon habeas corpus, than a probate judge of the county. Each must be governed by the same rules, and both are invested with the same powers — no more and no less.”

In Work v. The State, 2 Ohio St. 296, 302, Ranney, J., in referring to the writ of habeas corpus, took occasion to say: In what does the privilege of this great bulwark of personal liberty consist? The constitution furnishes no answer, nor was it necessary that it should. If ages of uninterrupted use can give significance to language, the right of jury trial and the habeas corpus stand as representatives of ideas as certain and definite .as any other in the whole range of legal learning.” But while this is undeniably true, and while it is also true that a matter of record coming before'the, court-, in such summary proceeding, cannot, independently of statute, be impeached collaterally as having been obtained by fraud ; yet the extent of the jurisdiction in habeas corpus, as well as the manner of its exercise, is undoubtedly, in some measure, within legislative control. The question is, therefore, not as to the jurisdiction in habeas corpus which might be conferred on this court, but what jurisdiction has, in fact, been conferred by the constitution and statutes. As already stated, the grant in the constitution is simply that this court shall have jurisdiction in habeas corpus. The statutory provisions, it will be seen (Rev. Stats. §§ 2726-2753), so far as they relate to cases like this, are the same as 31 Chas. II., c. 2 (1 Eng. Stats, at Large, rev. ed. 785; Hurd’s Hab. Cor. App. 1), which “ statute has been re-enacted or adopted, if not in terms, yet in substance and effect, in all the United States” (2 Kent’s Com. 27; Hurd’s Hab. Cor. 2 ed. 128); and that statute conferred upon the court no power whatever to turn the summary proceeding by habeas corpus into a writ of scire facias, to impeach a charter on an allegation of fraud.

We come now to the statute 27 Ed. 3, St. 1, c. -2; 1 Stats, at Large (rev. ed.) 195, which provided, in substance, that every pardon should contain the names of the persons on whose application it was granted, and the representations made to procure it; and if a judge, before whom a pardon might be pleaded or relied on, found the representations to be untrue, he was required to disallow the pardon, and moreover do as the law demandetli.” The condition of things which led to this statute and others on the subject (as 2, 10 & 14, Ed. 3; 13 R. 2, c. 1 ; 4 II. 4, c. 2; 8 Am. L. Reg. N. S. 513, 577), is well known, and need not be here repeated. 1 Parl. His. 293; Crabb’s His. Eng. L. 279; 3 Hume’s His. 272. Besides the fact that the statute would have been inapplicable in a case like this, it is inconsistent with the principles of our present, as well as our former constitution in relation to pardons ; and aside from that, objection, it is not, in any view, in force in this State. Crawford v. Chapman, 17 Ohio, 449; Lindsley v. Coats, Roads v. Symmes, 1 Ohio, 243, 281; Sergeant v. Steinberger, Thompson v. Gibson, 2 Ohio, 305, 339; Fleming v. Donahue, 5 Ohio, 449; Helfenstine v. Garrard, 7 Ohio, 1 pt. 275; Chillicothe Bank v. Swayne, 8 Ohio, 257, 282; Winn v. State, 10 Ohio, 345; Vanvalkenburgh v. The State, 11 Ohio, 404; Stilley v. Folger, 14 Ohio, 610, 650; Carroll v. Olmsted, 16 Ohio, 251, 259; Urmsey v. Wooden, 1 Ohio St. 160; Kerwhacker v. Railroad Co., 3 Ohio St. 172, 177; Smith v. State, 12 Ohio St. 466; Drake v. Rogers, 13 Ohio St. 21. Possibly it was in force here during part of our territorial existence (1 Chase, 190, 512, 528), but if so, clearly since the state was formed, it has been as completely obsolete as the rule which formerly existed (2 Strange, 1203; 1 Ohitty’s Cr. L. 469), requiring a man charged with felony to plead his pardon kneeling, and pay four . guineas to each of the judges. In Com. v. Halloway, 44 Pa. St. 210, the principal case relied on by the warden, it appeared that the stat. 27 Ed. 3, had been wholly disregarded, and properly, for it seems that it is not in force in Pennsylvania (3 Binney, 599, 611). Whether a single governor in the United States regards himself as bound by it is doubtful. But it is sufficient to say that, however it may be elsewhere (1 Bishop’s Cr. L. § 906, n. 6; Bishop’s Written L. § 255), the provisions of that statute are not in force in Ohio, nor have they been treated as in force here at any time.

It is urged, however, that the pardon may be impeached in this case for fraud, independently of English statutes. But there is no such common law principle, nor, if it existed, would it be applicable in Ohio. A charter of pardon has been sometimes likened to a deed, in this sense, that it is of no force until it is delivered and accepted, though see 7 Rob. Pr. 376; but no case can bo found which denies that it is matter of record ; and, in truth, it is matter of record of so high a nature that no averment can be taken against it. At common law, as we have seen, a pardon may be impeached for fraud by scire facias (T. Ray. 13; 17 Vin. Ab. 32; 44 Pa. St. 219; 1 El. & Bl. 310; 14 Wall. 434), and, as we have also seen, scire facias only lies to matter of record. “ A charter which has been obtained from the crown by fraud, may be repealed by scire facias ; but so long as it remains unrepealed, its validity cannot be disputed.” Herr on Fraud (1 Am. ed.) 354; Webb v. Moler, 8 Ohio, 548; Ang. & A. Corp. § 636. Scire facias may be maintained to repeal letters patent (4 Inst. 88), or a charter granting a franchise, as a fair, market, rectory, ferry, toll, or office. Foster on Sci. Fa. 229, 237; Plow. Com. 491; Forsyth’s Const. L. 387; 2 Taylor’s Ev. § 1371; Ang. & A. Corp. § 778. And see, for a brief but instructive history of the origin of charters, Holmes’ Com. L. 271; Bigelow’s His. Pro. 66, 316. A patent for land cannot be impeached for fraud in an action to recover the land, nor in any other collateral proceeding; and this is upon the ground that it is issued by an officer of the government clothed with authority to hear and determine; but it may be impeached in equity, for fraud, in a direct proceeding for the purpose. Johnson, v. Townsley, Gibson v. Chouteau, 13 Wall. 72, 92 Shepley v. Cowan, 91 U. S. 330; French v. Fyan, 93 U. S. 169, 172; Marquez v. Frisbie, Vance v. Burbank, 101 U. S. 473, 514; Quimby v. Conlan, 104 U. S. 420, 426; Steel v. Smelting Co., 106 U. S. 447; Baldwin v. Stark, 107 U. S. 463. So it is as to patents for inventions. Mowry v. Whitney, 14 Wall. 434; cf. Walker on Patents, § 322. The proceedings of the secretary of state, in incorporating a company under the act of 1852, are conclusive against collateral attack. The State v. Taylor, 25 Ohio St. 279. So is the certificate of the probate judge, containing a record of naturalization. Spratt v. Spratt, 4 Peters, 393; McCarty v. Marsh, 5 N. Y. 263; Exp. Wingard, 1 West. L. M. 453, s. c., 4 Week. L. Gaz. 169. The record of the probate court appointing a guardian is, in all collateral proceedings, conclusively presumed to be correct. Shroyer v. Richmond, 16 Ohio St. 455. So is a recognizance taken by a justice of the peace. The State v. Daily, 14 Ohio, 91. And in this state and others, contrary to the rule in England and some of the states (Kerr on Eraud, 1 Am. ed. 293) it is well settled that as between the parties, a judgment cannot be impeached for fraud in a collateral suit or proceeding. Anderson v. Anderson, 8 Ohio, 109; The State v. Daily, supra; Richards v. Skiff, 8 Ohio St. 586; Bong v. Mulford, 17 Ohio, 484; Coates v. Chillicothe Bank, 23 Ohio St. 415; Conway v. Duncan, 28 Ohio St. 102; Christmas v. Russell, 5 Wall. 290; Maxwell v. Smith, 22 Wall. 77; Smith v. Smith, 22 Iowa, 516; Boston & W. R. Co. v. Sparhawk, 1 Allen, 448; McRae v. Mattoon, 13 Rich. 53; Vanmeter v. Jones, 2 Green Ch. 520; Kelley v. Mize, 3 Sneed, 59; Hefferman v. Porter, 6 Cold. 391; Kirby v. Fitzgerald, 31 N. Y. 417; Hammond v. Wilder, 25 Vt., 342; R. v. Grundon, 1 Cowp. 315; 4 Am. L. R. (N. S.) 534.

The remarks of Coke, Hale, Hawkins and Blaekstone as to the right to impeach pardons for fraud are chiefly abstracts or digests of 27 Ed. 3 and other statutes referred to in 8 Am. L. Reg. N. S. 513, 577; but Coke expressly says, what others have ■ repeated, that “ either suppressio veri or expressio falsi doth avoid the pardon.” 3 Inst. 238; 17 Yin. Ab. 43; 2 Hawk. P. C. (Curwood’s ed.) 533; 4 Bl. Com. 400. The same thing, however, is said of the king’s grant of a manor or an office (17 Yin. Ab. 98, 100); and, indeed, it is said, in general terms, with respect alike to charters, patents, grants and judgments, that anything obtained by fraud is void, and that “ covin doth suffocate the right.” But the truth is, the word void is used in different senses, and is “frequently construed to mean voidable.” (Bigel v. Starbuck, 34 Ohio St. 280, 285.) “ When the term (void) is used in reference to the solemn judgments and acts of the superior courts, it means no more than voidable. The judgment or proceeding may be avoided, but until this is done in the direct and regular course of revision, they stand.” Denn v. Lecony, Coxe, 112. “It is said that fraud vitiates all contracts, and even records, which is doubtless true in a general sense. But it must bo reached in some regular and authoritative mode; and this may depend upon the forum in which it is presented, and also upon the parties to the litigation. A record of a judgment may be avoided for fraud, but not between the parties or, privies in a court of law.” Hartshorn v. Day, 19 Howard, U. S. 211, 223. “ This use of the term void is not uncommon in the language’of statutes and courts,” Somers v. Brewer, 2 Pick. 184, 191. In that sense it was employed by the judge delivering the opinion in Work v. Gorrington, 34 Ohio St. 64, 75, in the remark, arguendo, that “pardons obtained by fraud are held to be void;” and in the same sense, and no other, it was used by Coke in the sentence quoted. It means, simply, that a pardon obtained by fraud is void, when in a proceeding authorized by law, before a court having jurisdiction for the purpose, with ample opportunity to the person holding the pardon to defend, such pardon is declared to be void. By 27 Ed. 3, and other statutes, such inquiry was permitted, but there is no such statute in Ohio. Even a deed of gift executed and acknowledged by one having legal capacity to convey, cannot be avoided at law by proof that it was obtained by undue influence, the only remedy being in equity. Truman v. Lore, 14 Ohio St. 144.

To sustain the answer in this case is to justify the impeachment of a full, unconditional pardon in a collateral proceeding, which is summary in its nature. No case, I think, can be found in opposition to this statement. Exp. Shaw, 7 Ohio St. 81; Exp. Bushnell, 9 Ohio St. 77; Exp. Strong, 21 Ohio St. 610; Exp. Van Hagan, 25 Ohio St. 426; Exp. Kearney, 7 Wheat. 431; Exp. Parks, 93 U. S. 18; Exp. Carll, 106 U. S. 521; The State v. Towle, 42 N. H. 540; The State v. Shattuck, 45 N. H. 205; Exp. Bird, 19 Cal. 130; Exp. McCullough, 35 Cal. 97; Com. v. Becky, 1 Watts, 66; s. c., 26 Am. Dec. 37, 49, note; People v. McLeod, 1 Hill, N. Y. 397; s. c., 37 Am. Dec. 328, 366, note; Hurd on Ilab. Cor. (2 ed.) 328; Freeman on Jndgt. § 619 et seq. In denying any such inquiry in a case of this sort, these authorities are especially applicable to this state, where every judge, save only the police judge, has as much jurisdiction and power in habeas corpus as this court possesses when in regular session.

It is urged, to be'sure, that the state has not deprived Enapp of the habeas corpus. True, it has kept the word of promise guaranteed in the constitution; it has granted the writ; but now it is proposed, on behalf of the warden, to employ the writ, not for the purpose of releasing from a seizure which was manifestly unlawful, but for the purpose of legalizing the unlawful arrest, by a judgment declaring the pardon to be void on account of the alleged fraud, and thereby destroying all hope of release. But it is claimed by the warden that pardons form an exception to the rule that an instrument of that class cannot be attacked collaterally. In support of the claim he places reliance not only upon the text books already noticed, but on Com. v. Halloway, 44 Pa. St. 210; Dominick v. Bowdoin, 44 Ga. 357; The State v. McIntire, 1 Jones L. 1; and The State v. Leak, 5 Ind. 359. In Com. v. Halloway the court was unanimous in holding that the pardon had never been delivered, and hence that there was no pardon. The further opinion was expressed, that if there had been a pardon it would have been void, the recommendations which were the sole ground for granting it, having been forged. Doubt, which seems to have been well founded (3 Binney, 599, 611), was expressed, as already stated, whether the stat. 27 Ed. 3 was in force in Pennsylvania ; but the judge delivering the opinion said the court had authority, independently of the statute, to inquire into the validity of the pardon, the principles of the common law having “ a rather wider extent than the provisions of this statute.” No authority is cited in the opinion, nor does the judge enter into any examination of the question whether the common law is as stated, and all that appears upon the subject is comprised within a page of the opinion. He says that the question should be raised by the attorney general, the executive’s law officer, “ for it would be quite indecent that any other person should raise it, unless under some carefully prepared statutory regulationand that it “ may be raised by scire facias to repeal the charter; but' it may also be raised on habeas corpus issued to allow the prisoner to plead his pardon ; for the commonwealth is a party to that proceeding, and the attorney general may appear and answer the plea, by showing the false suggestions on which the pardon was obtained.” This mode of raising the question by habeas corpus must, however, depend on some statutory provision which has never found a place among our laws. In this state the writ can only issue at the instance of the person deprived of his liberty, or on the application of some person acting in good faith in his behalf, and for the sole purpose of releasing him from unlawful restraint; nor would any other use of the writ be anything else than a palpable violation of the constitution by which the writ is guaranteed; and with us to assert that the pardon may be impeached by sci/re facias is to affirm that it is matter of record of such nature as not to admit of collateral attack by habeas corpus. The question whether a pardon may be collaterally impeached was, perhaps, not put at rest in Pennsylvania by Com. v. Halloway. Hester v. Com., 85 Pa. St. 139, 154. But in Dominick v. Bowdoin the court probably meant to follow Com. v. Holloway, though Com. v. Ahl, 43 Pa. St., is cited, which does not support the proposition, but is rather against it. The State v. Mclntire is placed on the ground that it appeared from the record and the pardon that the governor was deceived; but tlie court disclaim the power to look beyond the record and pardon (2 Am. L. Reg. N. S. 488). The State v. Leak follows State v. McIntire.

The decisions referred to were made by courts for which we have the utmost respect. Perhaps when regard is had to the points actually decided, the difference between this court and those courts with respect to organization and powers, and the forms in which the question was presented, it will be found there is no irreconcilable conflict in the cases. However that may be, wo are unwilling to sanction a principle which will authorize this court or any other in the state to impeach a pardon in this summary way.

But while the view we have stated is in our opinion impregnable, there is even higher and more satisfactory ground upon which we should deny the power to impeach this pardon, than by regarding the form of the instrument evidencing the executive will, or the form of the remedy by which such expression of will may be. questioned. We have seen that the governor has no power to revoke the pardon. 26 Ark. 74 ; 66 Mo. 266; 3 Ben. 316; 1 Bond, 574. Nor has the legislature any such power. When the king does pardon under the great seal, it has the full effect of the parliament pardon ” (Holt, C. J., in 13 How. St. Tr. 186); and “ the legislature cannot change the effect of such a pardon any more than the executive can change a law.” U. S. v. Klein, 13 Wall. 128, 148; Loan Association v. Topeka, 20 Wall. 655, 663. Nor have the courts tho unlimited power claimed for them. On the contrary, any attempt of the courts to interfere with the governor in the exercise of the pardoning power, would be manifest usurpation of authority. The nature of our government forbids it. The long contest as to the rightful authority of government is in some respects ended. In our national and state constitutions the powers of the three branches of government, the legislative, the executive, -and the judicial, are clearly defined and limited, and the important truth is at length understood, that each can best preserve the jurisdiction and power confided to it, by carefully abstaining from all interference with the rightful authority of the others. “Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties.” Sutherland v. The Governor, 29 Mich. 320, 324. While this was said in a case which is in conflict with a decision of this court, there was no conflict as to the view thus expressed. The same eminent judge says : “ Where complete power to pardon is conferred upon the executive, it may be doubted if the legislature can impose restrictions under the name of rules or regulations.” Provisions “must not be such as, under pretense of regulation, divest the executive of, or preclude his exercising, any of 1ns constitutional prerogatives or powers. Those matters which the constitution specially confides to him, the legislature cannot directly or indirectly take from his control. . . . The executive in the proper discharge of his duties, under the constitution, is as independent of the courts as he is of the legislature.” Cooley’s Con. L. (5th ed.) 138.'

The correct view is, that as the constitution has vested the pardoning power in the governor, and clothed him with exclusive authority to hear and determine, the only limitations which have been or can be made on the power are found in the constitution itself. No doubt it is competent for the general assembly to legislate in aid of the power, by providing with respect to the limitations on the exercise of the power; and doubtless there might be a valid enactment providing how a pardon obtained by fraud may, with the concurrence of the executive, bo avoided for fraud, for that would be in aid of the power; but legislation of the latter character, if ever thought to be necessary, should be limited to provisions conferring on some court or judge competent to receive the jurisdiction, power to aid the governor in avoiding a pardon for some atrocious fraud, such, for instance, as that disclosed iii Com. v. Holloway, supra, in a direct proceeding for the purpose, with ample opportunity to the accused to be heard, and with power of review in this court. But at present we have no such statute; and to hold that such power exists independently of statute, is not only to decide that it is vested in each of the judges of the state, but that any officer before whom the pardon is set up may go into the question of its validity, and treat it as a nullity. The acts of a commissioner of the land-office, or a commissioner of patents, a secretary of state, probate judge, or even justice of the peace are too sacred to permit such attack. The idea that the most solemn acts of the Chief Executive of the state may be so treated, is not to be tolerated for a moment. To sanction such a course is, besides, in effect, to pronounce against Knapp a sentence of life imprisonment, by reason of the matters set forth in the answer. In denying to this court power to do any such thing, in a proceeding like this, we deny it to every court in the state.

"While fraud should never receive the countenance of any one invested with a public trust, it must be remembered that fraud can only be redressed or remedied by the courts in the cases and in the mode provided by law. It is not true 'that there is a remedy in the courts for every wrong. Take the ease of a conviction obtained by fraud. It is void in the same sense that a pardon obtained by fraud is void ; but, after the term has ended, what remedy has the person so convicted in the courts % He has none whatever. An appeal for executive clemency is the only remedy. Cf. Sanders v. The State, 85 Ind. 318. A decree of divorce obtained by fraud is void in the same sense; but after term there is no power to impeach it or set it aside. Parish v. Parish, 9 Ohio St. 534. Other instances might be cited, if time and space permitted. Nor is this, as has been supposed, any reproach to the law. On the contrary, the law, in such cases, makes a wise choice between acknowledged evils. Besides, the matter here complained of is vague and unsatisfactory. The warden and physician are ordinarily selected from men of experience and judgment, and a physician of ability, as Dr. Gray is conceded to be, could scarcely be deceived in forming the opinion that a prisoner had tubercular deposits in'his right lung, where he had ample time and opportunity to observe and examine such prisoner. True, there is a demurrer to the answer, and a demurrer admits that which is well pleaded; but this court is not bound to say or believe, merely because it is asserted in an answer to which there is a demurrer, that such tubercular deposits, a certificate of the existence of which was the ground of the pardon, were produced by eating “ unwholesome articles.” Remarks pertinent to frauds of that character are made in Whart: Or. PI. & Pr. § 532. In no view of the case is the answer sufficient; but we prefer to place the decision upon the want of power in this court, under the present legislation, to enter upon the proposed inquiry as to the validity of Knapp’s pardon. “ It is far better that he should escape punishment than that a plain principle of law should be set at naught.”

Demurrer sustained February 20, 1883, and prisoner discharged.

Johnson and Longworth, JJ., concurred.

McIlvaine, J.,

dissenting. It is to be regretted that the court has been unable to agree upon the main question presented in this case; namely, the power of the court to inquire, upon habeas corpus, into the validity of a pardon under which a person convicted of crime and sentenced to imprisonment in the penitentary seeks to be discharged from such imprisonment.

Knapp was duly convicted of murder in the second degree, and sentenced to the penitentiary for life.. While in prison under the sentence, he \vas discharged under an alleged pardon issued by the governor, unconditional in form. Afterward, the governor having declared the pardon to be invalid by reason of fraud in its procurement, Knapp was rearrested and returned to prison, whereupon the writ of habeas corpus in this case was issued upon his petition against the warden of the penitentiary. By the petition, the conviction and sentence are admitted, but a discharge is demanded by virtue of the pardon. The warden, in his return to the writ alleges that the pardon relied on for a discharge was obtained by fraud. A question has been raised as to the sufficiency of the facts stated in the return upon which the alleged fraud is based ; but such question has become wholly immaterial, as the decision of the case has turned upon the question, whether fraud can be alleged against the pardon when set up as a ground for discharge in a proceeding in habeas corpus.

Preliminary to a solution of this “question it may be observed, that the former discharge of the relator from prison and his subsequent recapture are matters of no importance in this inquiry, as the same questions would arise, if after the delivery of the pardon he had been detained in the custody of the warden upon the declaration of the governor that the pardon had been obtained by fraud : for the ground of the decision is, that the court has no power or jurisdiction, in a proceeding in habeas corpus to go behind the. face of the pardon to hear and determine whether there was fraud or not.

The first proposition involved in this inquiry is, that a pardon obtained through fraud is void at common law. This proposition has been so often and uniformly stated by common law courts and common law writers and results so clearly from the common law principle, that fraud vitiates every instrument, or grant procured by it, no argument is necessary to support it. True, the word void,” as used in the books, in this connection, applies only when the facts constituting the fraud are judicially ascertained. But it does not follow, that the jurisdiction of the courts, to declare a pardon void by reason of fraud in procuring it, may be invoked, at all times and by all persons. A pardon is an act of grace and mercy bestowed by the state through its chief executive, upon offenders against its laws, and if it be obtained by fraud, the state alone is aggrieved thereby, and the state alone can avoid it. But the chief executive, thóugh authorized as the agent of the state to grant pardons, is not authorized to revoke them, nevertheless, being charged with the duty of seeing the laws duly executed, it seems clear to me that upon discovering that a pardon was obtained from him by fraud, it becomes his duty to put in motion such action as will result in the due execution of the laws, and I can conceive of no act more conducive to that end, than to cause the arrest of the offender, if he be at liberty, or to cause his detention, if he be in prison. Such action, it is conceded, is not conclusive against the prisoner, for the reason that the chief executive has no power either to revoke the pardon or to judicially ascertain the existence of fraud in procuring it.

To admit that a pafdon fraudulently procured is void or voidable at common law, and to hold, that by the same system of jurisprudence no means exist for avoiding it, would be an assault against the system that has never heretofore been made. I am aware that the common law has not furnished a remedy for every wrong;, but in no instance' has the law ever pronounced a certain act or instrument void or voidable, wherein ample remedy to avoid it, could not be found either in its own courts or in the co-existing courts of equity. It may be said that such instrument might be declared void by a court of equity upon bill filed for that purpose, and also, that in a court of law, a judgment to the same effect might be rendered on a writ of scire facias issued for that purpose. Let it be admitted, it is quite clear, that neither of these remedies would be adequate under all circumstances, for the reason that such proceedings would afford a means of escape, before judgment could be rendered, instead of seizing and detaining the body of a convict by virtue of the sentence, which stands in full force and unsatisfied. True, this defect in the remedies named does not prove that they do not exist, but it suggests the necessity for a more ample and summary one in the interest of justice.

As we have said, an order for the rearrest of a convict sentenced to imprisonment for crime, who has secured his release through a pardon alleged by the chief executive to have been obtained by fraud, is not conclusive against the prisoner, as to the existence of the fraud, nevertheless the right of such convict to his freedom, which rests solely on the pardon, cannot exist, if such pardon was obtained by fraud. Upon this question of right, a fraudulent pardon is absolutely void. The only right of such convict in such case is to have the question of fraud judicially determined. This right would be secured by a determination of that question in this case, upon an issue joined between the only parties interested — the state and the relator. True, the state is not a party by name, but its agent and representative is the person charged with the custody of all persons convicted and sentenced for felonies— the warden of the penitentiary — who appears and defends by the attorney general of the state.

But it is claimed, that this court has no jurisdiction to try such issue in a proceeding in habeas corpus. Why not t It is not disputed that it has jurisdiction to hear testimony and determine an issue of fact in such proceedings. But it is said that the validity of a pardon which is a record cannot be raised in a collateral proceeding, and such is the nature of this proceeding. Is this a collateral proceeding within the meaning of that rule ? In the first place, a pardon is not a record in the sense that a jndgment is a record. It' was not made in the exercise of judicial powers. It is an act of executive clemency, evidenced by a written instrument, and is not a record anymore than any other warrant or charter granted by the state through its authorized agent. Is it possible that a claim of right can be asserted in any court against the state upon any charter issued by the state, which is void because of fraud in obtaining it, against which the state would be debarred from alleging and proving fraud, on the ground that a record cannot be impeached collaterally ? Again, the relator is held in custody by the state under a conviction and sentence as is claimed by the state, whereupon the relator demands his liberty by virtue of a pardon, thereby affirming the validity of the pardon. This affirmation is denied by the state through its proper officer. Is this an impeachment of a record collaterally within the meaning of the rule contended for % I think not. It is nothing more than the denial of the validity of an instrument^ which is alleged to be valid, and under which a right- is asserted. By asserting the validity of such instrument, against the grantor, and claiming a right under it in any proceeding of which the court has jurisdiction, an issue of fact is tendered, and if made, the court has jurisdiction to hear and determine it. That this court, in a proceeding in habeas corpus, may try issues of fact is not denied. That a pardon obtained by fraud is void, is not denied. Surely, then, whether it be fraudulent or not is an issuable fact. We admit that the charter is prima facie evidence of a valid pardon. But it is said that the charter is a record importing absolute verity, against which neither allegation nor proof will be allowed in a case of habeas corpus. This claim is without reason. A misapplication of a principle. A charter of pardon imports the same degree of verity as any other deed executed by the state, and when its validity is put in issue in a habeas corpus suit, it is a direct, and not a mere collateral attack; and if it is shown to be fraudulent, it is of no more force than if forged. No one will deny that, on habeas corpus, proof of forgery would be heard: why, then, not proof of fraud ?

The exact question now under consideration was made and decided in favor of the jurisdiction of the court, by the supreme court of Pennsylvania, in Commonwealth v. Holloway, 44 Pa. St. 210; and by the supreme court of Georgia in Dominick v. Bowdoin, 44 Geo. 357, upon the principles of the common law, by very able and satisfactory reasoning. The same views are taken by several text-writers. There is no well-considered case in this country or in England to the contrary. The English statutes have no place in the consideration of this question. The whole case rests on the reasons and principles of the common law which, undeniably, declares pardons obtained by fraud to be void.

White, O. J., concurred in the dissenting opinion.  