Letter from E. S. Fisher to Mississippi Governor Benjamin G. Humphreys; July 16, 1866

[seal]

Grenada July 16^th 1866.

His Excellency B. G. Humphries—

Dear Sir—

As Allen's case turns intirely upon a point of law, I have advised his friends that it is a waste of time to get names to the petition—The case is in few words—this—Allen about the 1^st of July 1865 while a slave, stole a mule—and the sole question is whether he could be punished after the passage of the emancipation ordinance on the 21^st of August last, for an offence, Committed while he was a slave—The Slave Code declared the punishment for larceny Committed by slaves—provided a Special Court, to be composed of five slave holders &c. To try the party accused—regulated the manner of trial and everything connected therewith—The Slave Code went down with the institution—It could not exist for the plain reason—w that there were no slave holders in the state to compose the Court—Allen's offence had to be tested or measured by the law in force at the time it was Committed—and when this law ceased to exist, the offence ceased, in a legal sense, with it—To authorise the punishment of a person there must have been a law violated at the time the act was Committed, and a law in force at the time of the trial denouncing the particular penalty inflicted by the Court—

Now there never has been a law in Missi, making larceny Committed by a slave a penetentiary offence—Larceny Committed by a free negro has been for many years a penetentiary offen-ce—but bear the important and Controlling fact in mind, that he must have been a free negro at the time the offence was Committed—An offence Committed by a slave, but

who becomes free before trial, must nevertheless be punished, if at all, as a slave offence for the reason that the law has prescribed different modes of trial, and different modes of punish-ment, and as trial must always precede punishment, it must follow as an irresistable conclusion, that if there can be no trial, there can in the very nature of things be no punish-ment—But as this question, after full argument, has been decided by the able circuit Judge of the district, it will be suffi-cient to refer to his decision, which he will communicate in his own language—It being, exclusively the province of the Courts to expound and declare the law in regard to crimes and punishments, it is presumed that the Executive will yield to their decisions when Known—and will do what the Constitu-tion requires—that is "see that the laws are enforced"—which means that no person shall be punished without the authority of law—while the Executive is invested with the power to pardon—

It may however be said that there is a judgment of the Court in this case which must be presumed to be correct until the Contrary is shown—It is admitted this is a correct general rule—But here the Judge who pronounced the judgment states that he would not have pronounced such a judgment if the point had been made and agreed, and that under the facts in Allen's case, he would not now pronounce any judgment whatever except that of acquittal in his case—If it were in the Judge's power, he would unquestion-ably grant a new trial and discharge the party upon the State of facts presented—But after ^the^ term has elapsed, he has no power to grant a new trial, and hence as the Executive is clothed with an unlimited power of pardon, so that he may see that the criminal laws of the State are enforced with due

regard to the facts attending each case, we; I think that I may safely venture to ask the pardon in this instance, as the Executive is desired to do no more than the Court would do, if it had power to act—I invoke no principle of mercy, ask for no departure from a correct rule—I ask only for the law.

A word to excuse Counsel for not making this question on the trial—It is Known that the whole south last Nov. was agitated on the subject of an insurrection—This poor creature as the proof showed, had been led astray by the U. S. officers—& it was thought advisable to make some wholesome examples, to let U. S. officers see the fruits of their wickedness—All these considerations are now past—and there is now reason why the law should not come to the rescue of this party—

Very Respectfully Your obt Servt.

E. S. Fisher

I have a perfect recollection of the testimony given in the above Case—and state that it showed the mule was stolen early in July 1865—Majr. Harper speaks of the time "when the negroes were informed of their freedom"—He means when the Federal officers & soldiers so informed them—

E. S. Fisher

Since writing the above, I have received Capt. Barksdales letter—stating that the offence was committed in July 1865—The Capt. is the District attorney who prosecuted Allen

I refer to his letter.

F.

July 23^rd 1866

F

Grenada, Miss. July 16^th 1866

Fisher—E. S.

Letter of—

Transmitting ^and urging^ application for the pardon of Allen, an ex-slave, convicted of larceny at the Nov. term of Tallahatchie Court.