Ex Parte Lockhart. The government is represented by the executive, to whom is solely confided the discretion when the prerogative is to be exercised. It is his function to grant or withhold the act of clemency, whether it be the remission of a pecuniary penalty, the commutation of the sentence, or the liberation of the prisoner. It is conceded that the power of absolute pardon is given to the executive; and this admission, as a general rule, would include the power to remit a portion of the punishment, or to modify it, as the circumstances of the particular case may properly suggest. Such, we might readily suppose, must be the result whenever the general authority is granted; nor can we find any difficulty in arriving at the conclusion, that if the right to restrict or modify, or release the punishment, in whole or in part, exists, the power to annex a condition to the favor conferred is not a necessary sequence. As the grant of pardon is an act of grace on the part of the executive, it requires the assent of the criminal to its terms before it can avail. Thus, it is held "that a pardon must be pleaded specially at the proper time; for, if one is indicted, and has the king's pardon in his pocket, and afterward pleads the general issue, he waives all the benefit it would otherwise confer." 2 Hawk. P. C. 37, §§56, 64, 65; 5 Bacon's Ab. 292, Pardon, E. It follows, then, to quote the opinion of Judge Marshall, already referred to, that "a pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it upon him." See also Kelyng, 45, Copeland's case; Foster, 40, Ratcliffe's case. The effect of a pardon is to protect the criminal from subsequent imprisonment to discharge the penalty demanded by the law-and, in Ohio, to restore the convict to all his civil rights and privileges; Swan 275, sec. 41. It is a favor granted to the person, subject alone to his adoption, and conferred for his benefit. He can not dictate the condition upon Ex Parte Lockhart. which he is to receive it, nor yet claim it as an act of mere justice to himself. Having once accepted the pardon, it can only avail when its conditions are fulfilled by the party claiming its protection. If he refuses to perform them, or denies their obligation, he ought not to be the recipient of the gift. By the common law, it was always held that the sovereign, as incident to his pardoning prerogative, had the right to annex such conditions as he pleased, and that whether precedent or subsequent. Coke Litt. 274, b.; 2 Hawk. P. C. 394; 4 Blackstone Com. 401. Such has been the practice in England, where transportation for a term of years, or for life, is often made the condition of a pardon; and this is permitted, notwithstanding the habeas corpus act; 31 Car. 2, ch. 2, §14. The power is fully admitted in 9 Adolph. & Ellis, 731, Watson and others -the case of the Canadian prisoners. In the United States, the principle thus indicated has very frequently been recognized and acted upon. The Supreme Court of New York, in 2 Caines, 57, The People v. James, fully affirm the right of the executive to impose such conditions upon the criminal. So, in 3 Johns. Cases, 333, Pease case, the Court of Errors decided that "the punishment might be mitigated, or changed from imprisonment to voluntary transportation." The same rule is adopted in South Carolina. 1 Bailey, 283, Smith case; 2 Bailey, 516, Addington case; 1 McCord, 178, Mary Fuller's case. So in Pennsylvania, 8 Watts & S. 198, Flavell case. There is a distinction made, in the books, between a statutory pardon and a pardon under the great seal. The former, it is said, need not be pleaded, or accepted, as the law is virtually repealed which created the offense, whenever the Parliament enacts the liberating statute; while the latter is but a privilege personal to the party receiving it, and requires his willingness to accept it to be proved. Here, there is no such difficulty. The pardon must be either accepted or rejected. If the criminal asks its protec Ex Parte Lockhart. tion, he must perform its conditions. He can not become a party to the act of grace, except to enjoy its benefits. He can not prescribe the terms of his obedience, but must, submit to the requisitions of the executive, by whose clemency he has been released from imprisonment. It is evident the relator does not intend to leave the State, and continue absent for the term required by his pardon. Can he, then, remain in Ohio, and not be reclaimed by the proper authority, as a prisoner, under his former sentence? If the executive favor has not been accepted in its true spirit, and is not carried out to effect its real object, it ought not to shield the relator from arrest. The law only can be vindicated by remitting him to the custody of the proper officer, to serve out his term of labor in the penitentiary. But, it is said, although the executive may prescribe conditions, he can not expatriate the person to whom he grants a pardon. The answer to this is, that the exile is voluntary on his part. He might, if he had been so inclined, have remained in custody until his sentence had been performed; but he has chosen voluntary absence from the State, with the enjoyment of liberty, to a residence in it as a felon, with a felon's punishment. He has exercised the option submitted to him and with a full knowledge of the consequences of his disobedience, obtained the executive permission to leave the prison walls. He must, therefore, abide by the license given him, or reject it altogether. There is nothing, we apprehend, in the objection, that the condition prescribed is against sound policy. It is certainly not opposed to good morals. We can not appreciate that system of either moral or legal ethics which would thus give immunity to criminals, and make the limits of our penitentiary coextensive with the boundaries of the State. Against such a visitation, it is our duty to save, if we can, the community in which we live. Nor is there any soundness, we think, in the objection, that the condition is nugatory, because there is no mode in which it can be enforced by the removal of the criminal from the Elizabeth Atkinson v. Joseph Talbott, et al. State. There is no question of power involved. It is simply the application of the law that governs all agreements, more especially those dependent upon the performance of a stipulation by the party who seeks relief from a judicial tribunal. He must first do what he is bound to do by the terms of his contract, and not till then can he ask redress. In the case before us, it appears the period required by the executive for the relator to remain without the State, was the unexpired term of the original sentence. If the court, who tried the culprit, were satisfied that his crime demanded imprisonment for the number of years they affixed as his punishment, he ought still to remain in custody, if he chooses to reside in Ohio. He has made a voluntary selection between freedom in another jurisdiction and criminal servitude here. We can not disappoint, much less compel him to forego, his willing preference. On the whole case, we have no doubt as to the law, or our own duty in enforcing it. The relator is remanded to the custody of the warden of the penitentiary, who is fully authorized to receive him as an escaped convict. ELIZABETH ATKINSON V. JOSEPH TALBOTT, ET AL. The indorser of a negotiable note is discharged from liability thereon in case his indorsee gives the maker an extension of time by taking a new note and receiving the interest in advance. SPECIAL TERM.-Action on promissory note. The facts are sufficiently stated in the decision. Fox & French, for plaintiff. Newton & Horton, for defendant Horton. Elizabeth Atkinson v. Joseph Talbott, et al. STORER, J. This is an action upon a promissory note for $400, dated Oct 9, 1854, made by Joseph Talbott, payable in sixty days to John L. Talbott, or order, and by him indorsed, together with Lee and Talbott and N. T. Horton. All the parties, save Horton, are in default. He has filed an answer, claiming that he was the accommodation indorser and surety of the maker, and that when the note became due on the 11th December, 1854, the plaintiff, who was the holder, received from the maker a draft for the amount of the note, payable in sixty days, paying the interest, at the rate of ten per cent., in advance, for the new credit, the effect of which, it is contended, was to discharge the indorser. If the draft was intended as a renewal of the previous note, and time was given thereby to the maker, without the indorser's consent, his liability is extinguished. It is necessary, however, that the agreement to extend the time should be founded upon a sufficient consideration, and gave to the maker the right to a new credit. In the present case, the interest for the renewed credit was paid to the holder, by the maker, in advance, which was equivalent to an agreement, for value received, to postpone the payment; it gave the maker the right to compel the creditor to allow the additional time stipulated, and of course deprived the indorser of the privilege, he would otherwise have had, to sue the principal. Such was the ruling in the case, in 2 Camp., 179, McLemore v. Powell; 6 Peters, 250, Bank United States v. Withall v. Masterman, where the holder of a bill had, at maturity, allowed the acceptor to renew it, without consulting the indorser, and the indorser was held to be discharged. The principle alluded to, is settled in 12 Wheaton, 554, McLemore v. Powell; 6 Peters, 250, Bank Uniled States v. Hatch; and our Supreme Court has repeatedly affirmed it. 5 Ohio, 214, Steubenville Bank v. Carroll's adm'r; 13 Ohio, 84, Canton Bank v. Reynolds; 6 Ohio, 17, Steubenville Bank v. Hoge; 14 Ohio 348, McComb v. Kittridge. It is claimed, however, that the draft was deposited by the maker, and taken by the holder of the note as collateral secu |